From: [log in to unmask] [mailto:[log in to unmask]] On
Behalf Of CDT Info
Sent: 22 February 2006 15:19
To: [log in to unmask]
Subject: Policy Post 12.04: Digital Technology Makes Surveillance Easier,
Requiring Stronger Privacy Laws
A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology
(1) CDT Report Finds Changing Technology Makes Government
Surveillance More Intrusive
(2) Expanded Online Storage Raises Privacy Issues
(3) Location Technologies: The Future Of Surveillance
(4) Keystroke Loggers: Government Spyware
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(1) CDT Report Finds Changing Technology Makes Government
Surveillance More Intrusive
Against the backdrop of debate over warrantless wiretaps and
Administration calls to amend the Foreign Intelligence Surveillance
Act, CDT today released a report about how privacy law has failed to
keep pace with technology. The report, entitled "Digital Search &
Seizure: Updating Privacy Protections to Keep Pace with Technology,"
calls for an in-depth Congressional review of the ways digital
technology makes government surveillance easier and more intrusive.
CDT's report focuses on three developments:
- Online storage: Personal information that people used to keep in
paper files or on computer hard-drives is increasingly stored online,
beyond the physical confines of the home or office.
- Location technologies: Cell phones, car navigation services and
other communications devices can provide increasingly precise
location information.
- Keystroke loggers: Programs known as "keystroke loggers" record all
information typed into a computer and can be installed
surreptitiously, even remotely.
Every day, Americans use the Internet and wireless services to
create, access, transfer and store vast amounts of private data. More
and more of our lives are conducted online and more of our personal
information is transmitted and stored electronically. Services like
online storage of email and location capabilities built into cell
phones offer tremendous convenience but also generate large amounts
of data revealing our thoughts, associations and whereabouts.
The report argues that, under current privacy rules, this personal
information receives inadequate protection against government
intrusion. Personal information held by service providers is
accessible to the government under weak standards based on outdated
Supreme Court decisions and statutes written before the World Wide
Web even existed.
CDT calls on the courts, Congress and technology companies to
respond. The Internet and communications industry, public interest
groups and the government need to enter into a dialogue to find the
proper balance that will ensure that the fundamental right of privacy
is protected as technology changes.
"Digital Search and Seizure: Updating Privacy Protections to Keep
Pace with Technology'" (Feb, 2006)
http://www.cdt.org/publications/digital-search-and-seizure.pdf.
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(2) Expanded Online Storage Raises Privacy Issues
Many online services -- ranging from email to online calendars to the
storage of voice telephone calls made possible by Voice over Internet
Protocol technology -- provide volumes of storage capacity that were
unimaginable twenty years ago when current privacy laws were drafted.
Although leading service providers promise consumers relatively
strong protections in their privacy policies and adhere to those
promises in commercial contexts, privacy policies have exceptions for
government demands and the rules for government access are often weak.
The Supreme Court has held that the Fourth Amendment, which
safeguards individuals from unreasonable government searches and
seizures of their "persons, houses, papers, and effects," protects
not only a person's home or apartment and his physical person, but
also the content of his telephone calls. While the Court has never
explicitly ruled on email, it seems logical that the same Fourth
Amendment protection would apply to email in transit.
However, in a series of cases in the 1970s, the Supreme Court held
that the Fourth Amendment does not apply to personal information
contained in records held by third parties.
CDT questions whether this "business records doctrine" is still
constitutionally sound, given the revealing nature of the huge
amounts of transactional data generated by electronic systems today.
It was developed when courts did not foresee the ability of a
communications service provider to store the content of
communications and documents that the subscriber never intended the
service provider to read or use. Nor did courts anticipate the role
of the Internet in decentralizing data storage outside the home or
office.
The business records doctrine played an important role in shaping the
Electronic Communications Privacy Act of 1986 (ECPA), which draws
many fine distinctions that leave much stored email only weakly
protected, to an extent that would surprise most users.
In particular, messages and documents stored with Webmail providers
are entitled to weaker protections than those stored on users'
computers. While the government needs a judicial warrant to search
your computer, it may be able to peruse your Web-mail account with
only a subpoena, issued without judicial review, without any specific
suspicion of wrongdoing on the part of the user, and often without
notice to the person whose data is being disclosed.
CDT's report urges Congress and the courts to recognize that the
business records doctrine is not applicable to stored email and to
protect all stored email with the warrant requirement.
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(3) Location Technologies: The Future Of Surveillance
Clandestine electronic tracking devices have been widely used by
government agents for many years, but today's location tracking
capabilities are qualitatively unique. Unlike earlier location
tracking devices (such as electronic "beepers"), today's advanced
tracking devices, which can be found in cell phones and car
navigation systems, do not merely substitute for real-time visual
surveillance -- they provide remote monitoring of movements,
including in locations not visible from public spaces.
Location technologies offer consumers added safety, security and
convenience. Nevertheless, the location information that these
devices generate constitutes a record of the user's movements that
government agents can monitor in real-time or scrutinize
retrospectively.
Location information can reveal a person's acquaintances and physical
destinations such as medical clinics, government services buildings
and commercial establishments. Such data may imply -- correctly or
incorrectly -- additional information about the individual, including
preferences and associations. Without assurance that one's movements
are not arbitrarily being watched and recorded by the government,
full exercise of the freedom of association will be chilled.
CDT recognizes the value of location information for legitimate law
enforcement and intelligence purposes. At the same time, appropriate
legal standards must be established by the courts and, in the absence
of judicial action, by Congress to safeguard privacy rights against
indiscriminate government surveillance of individuals' movements and
activities.
CDT's report reviews recent decisions by federal magistrates applying
a probable cause standard for all government access to location
information.
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(4) Keystroke Loggers: Government Spyware
Keystroke loggers are computer programs that record every keystroke
on a computer. The programs have legitimate uses, such as monitoring
productivity in the workplace, but when installed by government
agents to monitor computer use, they are essentially government
spyware. They illustrate the widening gap between privacy protections
and the growing potential of surveillance tools available to the
government.
With keystroke logging surveillance, the government can obtain access
to a complete picture of what people are doing on their computers. In
comparison to a standard search and seizure of computer evidence,
keystroke logging programs are especially intrusive because they are
installed and operated without contemporaneous notice to the person
whose files are being seized. They can record documents and messages
that individuals choose to delete or never send, thereby allowing the
government to view the inner thoughts of its surveillance targets. In
this sense, they are even more intrusive than wiretaps.
The use of keystroke loggers raises privacy concerns not contemplated
by the current legal standards courts apply to determine whether a
search has been conducted in a lawful manner. None of the existing
laws is directly responsive to the technology's unique features. They
all fail to address some of the most egregious privacy invasions that
could result from this method of surveillance.
CDT believes that the federal wiretap law should be amended to extend
its special protections to the installation and use of keystroke
loggers. Until Congress makes statutory changes, judges considering
search warrant applications for installation and use of keystroke
loggers should use Fourth Amendment principles to impose strict
warrant requirements on the use of keystroke loggers.
Additional resources on electronic surveillance laws:
http://www.cdt.org/security/guidelines/ and
http://www.cdt.org/wiretap/wiretap_overview.html
CDT's resource page on the NSA controversy:
http://www.cdt.org/security/nsa/briefingbook.php
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Detailed information about online civil liberties issues may be
found at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/4
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 12.4 Copyright 2006 Center for Democracy and Technology
_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts
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