Privacy advocates â€“ really, anyone who uses a phone or the Internet in
the United States â€“ won an important victory before Thanksgiving when the
Senate Judiciary Committee
approved national intelligence legislation that did not provide retroactive immunity
for the telephone companies that aided the Bush administration's illegal spying
efforts. But the debate in the committee represented only one skirmish in the
ongoing war over privacy in the digital age.
There is growing public awareness of the amount of data private corporations
collect using tools like interactive Web sites, mobile wireless connections and
global positioning systems, as well as remote computing through services like
Google Docs and .Mac. Everywhere you look, the privacy issue rears its head:
Some object to
Mayor Michael Bloomberg's congestion
pricing plan because it would allow the
government to track who drives
where and when.
At the heart of the issue is the question of whether our constitutional right
to privacy will persist in an age of email and voicemail, or if it will fade
along with personal letters and answering machines. Along with Congress, the
courts are grappling with this question, deciding what standards the government
must meet to gather information through different technologies. Their decisions
have the potential to transform longstanding assumptions about privacy and limits
The Legislative Battle
The legislation approved by the Judiciary Committee amends the
Foreign Intelligence Surveillance
Act to permit U.S. government wiretapping of
all communications that cross or occur outside U.S. borders -- without a warrant.
But President George W. Bush has threatened a veto unless the bill also grants
immunity for the illegal wiretapping he already ordered of domestic communications.
Any version of the bill, the president
said, "must grant liability protection to companies who are facing multibillion-dollar
lawsuits only because they are believed to have assisted in the efforts to defend
our nation following the 9/11 attacks."
The Senate Intelligence Committee passed a
version of the legislation that includes the immunity along with many other
concessions to the Executive Branch. The House of Representative, though, already
The Senate returns to the Capitol in early December to take up the Foreign Intelligence
Surveillance Act. Senate Majority Leader Harry Reid has to choose which version
of the bill to send to the Senate floor. Some observers say he is likely to choose
the Intelligence Committee version, since it has bipartisan support. Opponents
of immunity will try to make amendments to the bill on the floor or, failing
that, promote the House version in the conference committee to reconcile the
different versions. If that fails, some senators have vowed to try to block the
With or without immunity, the resulting bill will allow for spying without warrants
on people in the United States in some circumstances, eroding the privacy of
our electronic communications.
The Legal Contest
The privacy issue is also being fought over in the courts. In a case currently
before the 6th U.S.
of Appeals, Warshak v.
government asserts that anyone who stores their e-mail with a company like Yahoo!
or Verizon -- which means the vast majority of us -- has given up any expectation
that those e-mails will be private. The very fact that the host company can see
the emails, the administration's reasoning goes, means the government should
be able to search the messages without a warrant.
The case tests the constitutionality of the
Act. Originally passed in 1986, it allows law enforcement
to obtain e-mails, voicemails, and other information stored with a third party
using a much weaker standard than the one protecting our paper letters and phone
calls. Warshak is the first case asserting that people have a reasonable expectation
of privacy when using e-mail.
On the one hand, it seems obvious that e-mails are private. As a group of Internet
professors wrote in a friend of the court brief, a simple survey of the contents
of e-mail communication shows that "we rely on the privacy of the medium.
Society does not make us rely at our peril but rather accepts as reasonable our
expectations of privacy in e-mail." And yet the widely reported government
monitoring of e-mails itself erodes that expectation.
The court is getting set to hear the government’s appeal of the lower court
ruling that the Stored Communications Act violates the 4th Amendment. While the
debate in Congress could tell us whether anyone will be held accountable for
past unwarranted invasions of our private communications, Warshak v. USA could
set the bar for privacy on the Internet going forward.
Patriotism or Profit?
The phone companies and their supporters argue that they should have immunity
for the illegal wiretapping because company executives are patriots who acted
in good faith to help law enforcement respond to the traumatic September 11 attacks.
But recent revelations suggest the businesses were responding to the more base
motivation of profit.
Joseph Nacchio, the former head of Qwest Communications, has
asserted that the National Security Agency requested customer data as far back
as February 27, 2001, almost nine months before September 11. When the agency
admitted it had no legal order for the request, he refused to comply. He claims
the National Security Agency then retaliated by reneging on lucrative contracts.
Nacchio was convicted of insider trading in April 2007; the loss of NSA revenue
was part of his defense â€“ he claims they were the basis for the rosy forecasts
he made while selling off some of his shares â€“ and he is appealing the
Comcast offers its employees a
handbook to describe how to cooperate with requests from law enforcement. It
includes a specific menu of fees to charge government: $1,000 to start an intercept,
then $750 a month to maintain it. Call records are $150 for one batch per week,
plus $50 for each additional delivery.
Many telephone companies have gone further,
funding from the federal government to collect, store and analyze data
on their customers, even sorting them into "communities
of interest" profiles. The government could not collect such information
without a subpoena, but the FBI argues that it is fine to outsource this surveillance
to private companies to do it in anticipation of a subpoena.
The companies can feed any information or queries from law enforcement back into
the system, mapping the social networks of anyone the government has under suspicion.
They have regularly supplied
information to law enforcement, not just in response to legitimate subpoenas
but even to
letters falsely claiming that subpoenas were on the way.
This is perhaps the biggest danger with data mining: Far from being a tool to
collect information on known suspects, the collected information itself creates
the suspects. So, if people create certain kinds of information about themselves â€“ legal,
constitutionally protected information about who they associate with or where
they travel â€“ that alone can make them suspicious in the eyes of their
Internet service provider, their phone company and law enforcement.
An International Issue and a Local Issue
This debate is not limited to the United States. It is taking place wherever
the Internet has taken root. The most well-known
controversy might be the one involving Yahoo in China, where the Internet giant
has helped the government track down dissident bloggers.
In England, law enforcement is trying for the first time to apply a section of
of Investigatory Powers Act, which forces people to participate in their
prosecution by handing over passwords to encrypted files on their own computer.
The Crown Protective Service is apparently trying to use the act's mere existence
to intimidate an animal rights activist into handing over her encryption key.
In this scenario, simply possessing private, encrypted files becomes a crime
or a cause for suspicion from law enforcement. (For more on the European Union's
new data collection measures and the uproar they have caused, especially in Germany,
see this previous
In London, Bloomberg's inspiration for his congestion pricing plan, the system
tracks the license plates of all cars entering and exiting the congestion zone.
This has provided a foundation for a proposed "24-7 vehicle movement database" that
would enable police to track all vehicle movement throughout the country â€“ 50
million trip a day, reportedly â€“ and store the records for two years. In
response to these concerns, some have
ways to charge congestion pricing fees without tracking specific movements.
The recent strike by some New York City taxi drivers was over a related issue.
The Taxi and Limousine Commission wants all cabs to install tracking devices
in cabs that would tell the commission where the cars are at all times, regardless
of whether the driver has a fare or is on personal time.
Whether it's the city government checking to see where a taxi driver is or the
federal government reading your e-mail, the debate in both cases highlights the
importance of preserving basic rights and protections in the face of potentially
invasive technology. As we take advantage of new technologies and move more of
our private documents and communications online, we need to strengthen our privacy
protections, not weaken them.
Joshua Breitbart is policy director for People's
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