[Vision2020] The End of Privacy?

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

<http://www.nytimes.com/adx/bin/adx_click.html?type=goto&opzn&page=www.nytimes.com/printer-friendly&pos=Position1&sn2=336c557e/4f3dd5d2&sn1=84e9b341/ba42e34f&camp=FSL2012_ArticleTools_120x60_1787509c_nyt5&ad=BOSW_120x60_June13_NoText&goto=http%3A%2F%2Fwww%2Efoxsearchlight%2Ecom%2Fbeastsofthesouthernwild>

------------------------------
July 14, 2012
The End of Privacy?

Cellphones, e-mail, and online social networking have come to rule daily
life, but Congress has done nothing to update federal privacy laws to
better protect digital communication. That inattention carries a heavy
price.

Striking new data from wireless carriers collected by Representative Edward
Markey, a Massachusetts Democrat, and first reported last week by Eric
Lichtblau of The Times, showed surging use of cellphone surveillance over
the past five years by law enforcement agencies at every level and for
crimes both mundane and serious.

Wireless carriers reported responding to a whopping 1.3 million demands
from law enforcement agencies for subscriber information, including
location data, calling records and text messages. The number of people
whose information was turned over is almost certainly much higher because a
single request for a cell tower “dump” could sweep in the names of
thousands of people connected to a given tower at a certain time.

As cell surveillance has ballooned, federal and local officials have come
to rely less on wiretapping to eavesdrop on conversations, probably because
cell tracking is less time consuming and less legally difficult to manage.
In most cases, law enforcement officers do not need to hear the actual
conversation; what they want to know can be discerned from a suspect’s
location or travel patterns. And location data can be as revealing of a
cellphone owner’s associations, activities and personal tastes as listening
in on a conversation, for which a warrant is mandatory.

As a result, warrants for wiretaps, which are subject to stringent legal
standards used for decades, declined by 14 percent last year, to just 2,732
nationwide. The legal standards applied to cell tracking and other forms of
digital monitoring are more lax and inconsistently applied, with many law
enforcement agencies claiming a right to such data without having to show a
compelling need or getting detailed vetting by a court.

Clearly, federal laws need to be revamped and brought into line with newer
forms of surveillance. A good place to begin is the Electronic
Communications Privacy Act, the main federal statute governing access to
electronic information. The act has not had a significant overhaul since
its passage in 1986.

Senator Patrick Leahy, the Judiciary Committee chairman and lead author of
the 1986 law, introduced a promising bill last year that would amend it in
important, sensible ways. It would require a probable cause warrant for
access to e-mails and other electronic communications no matter how long
they were saved or where they were saved, whether in a personal computer or
an online storage system. Under current law, there is no warrant
requirement after an e-mail has been stored for 180 days.

Electronic correspondence deserves no less protection than letters kept in
a drawer. The government would still be free to access blog postings and
other publicly available content, and exceptions to the warrant requirement
would remain for emergencies and intelligence investigations. Similarly,
existing law requires a warrant for the government to access photos,
calendars and other private data stored on laptops or desktop computers at
home, but not for the same files stored with a service provider in the
“cloud.”

The Leahy bill would also provide some protection for location information
from cellphones or GPS systems, though probably not enough. It would
require a warrant for law enforcement agencies to access real-time location
data, but not past location records. The warrant rule should cover both,
the sensible standard in a bipartisan location privacy bill offered in the
House by Jason Chaffetz, a Utah Republican, and in the Senate by Ron Wyden,
an Oregon Democrat.

Both the Leahy bill and the location privacy bill break away from the
traditional “third-party doctrine,” which says there is no reasonable
expectation of privacy if the information is held by third parties, like
the cell carriers. Unfortunately, the Supreme Court shied away from
eliminating that doctrine when it rightly ruled this year that having the
police attach a GPS device to a car constitutes a “search” under the Fourth
Amendment. The Leahy bill has not attracted any Republican co-sponsors.
That is all the more reason to put it before the Judiciary Committee and
begin a debate on this critical issue.


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/vision2020/attachments/20120715/16f0967d/attachment.html>