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Digital Due Process: Protecting Americans’ Privacy by Restoring Constitutional Limits to Government in ECPA

by on March 30, 2010 · 20 comments

By Ryan Radia & Berin Szoka

Today a broad array of civil liberties groups, think tanks, and technology companies launched the Digital Due Process coalition. The coalition’s mission is to educate lawmakers and the public about the need to update U.S. privacy laws to better safeguard individual information online and ensure that federal privacy statutes accurately reflect the realities of the digital age.

Over 20 organizations belong to the Digital Due Process coalition, including such odd bedfellows as AT&T, Google, Microsoft, the Center for Democracy & Technology, the American Civil Liberties Union, the Electronic Frontier Foundation, The Progress & Freedom Foundation (where Berin works), the Competitive Enterprise Institute (where Ryan works), the Internet Technology & Innovation Foundation, Citizens Against Government Waste, and Americans for Tax Reform. The full member list is available at the coalition’s website.

Amidst the heated tech policy wars, it’s not every day that such a diverse group of organizations comes together to endorse a unified set of core principles for legislative reform. Over two years in the making, the Digital Due Process coalition, spearheaded by the Center for Democracy & Technology, is a testament to the broad consensus that’s emerged among business leaders, activists, and scholars regarding the inadequacies of the current legal regime intended to protect Americans’ privacy from government snooping and the need for Congress to revisit decades-old privacy statutes. It also represents a revival of a bipartisan consensus on the need for reform reached back in 2000, when the Republican-led House Judiciary Committee voted 20-1 to approve very similar reforms (HR 5018).

Today, in the digital age, robust privacy laws are more important than ever. That’s because U.S. courts have been unwilling to extend the Fourth Amendment’s protection against unreasonable search and seizure to individual information stored with third parties such as cloud computing providers. Thus, while government authorities must get a search warrant based on probable cause before they can lawfully rifle through documents stored in your desk, basement, or safe deposit box, information you store on the cloud enjoys no Constitutional protection. (Some legal scholars argue this interpretation of the Fourth Amendment, referred to as the Third Party Doctrine, is outdated and deficient. See, for example, Jim Harper’s excellent 2008 article in the American University Law Review.)

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Is Facebook Violating Federal Wiretapping Laws?

by on May 14, 2009 · 129 comments

Facebook has been at the center of a controversy involving its moderation policies and The Pirate Bay, a popular Bittorrent tracker that was found guilty of copyright infringement by a Swedish court last month. Since early April, Facebook has enforced a “site-wide” ban on links to The Pirate Bay – including those in private messages.wire_tapping_07

This practice may run afoul of federal wiretapping statutes that bar service providers from “intercepting” private messages, according to an article that appeared on Wired Threat Level last week. Wired quotes Kevin Bankston, a senior attorney for the Electronic Frontier Foundation, who explains that Facebook’s filtering raises “serious questions about whether Facebook is in compliance with federal wiretapping law.”

It’s important to draw a distinction between the traditional notion of “wiretapping” and Facebook’s “interception” of user messages, which doesn’t involve any human intervention. Regardless of how the courts may interpret ancient laws like the 1986 Electronic Communications Privacy Act, an automated computer system flagging and deleting certain strings from user messages simply isn’t comparable to a third party secretly listening in on a private phone conversation.

Besides, Facebook makes clear to its users from the get-go that their messages and postings are subject to a set of rules (which Facebook lays out in plain English). If Facebook believes a message or posting is against the rules, it can block or remove it. This is not an unreasonable rule; many online discussion forums have enforced similar policies since the Web’s early days. Such filtering is possible only if sites can “examine” messages to identify misconduct.

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DoJ Fails to Report Electronic Surveillance Activities

by on April 30, 2009 · 7 comments

Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content – who is talking to whom, how often, and for how long.)

The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:

The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).

EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.

It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.

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The Quiet Infamy of Gutlessness

by on December 16, 2008 · 6 comments

You can tell I like my writing when I take a sentence from a post and make it the title.

Annnyway, my brief comment on the whistleblower who outed “Stellar Wind” is on the Cato@Liberty blog.

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PFF Launches Center for Internet Freedom

by on October 24, 2008 · 12 comments

The Progress & Freedom Foundation has just launched the new Center for Internet Freedom.  CIF offers an alternative to the proliferation of advocacy groups calling for government intervention online by offering timely analyses and critiques of proposals that diminish the vital role of free markets, free speech and property rights.  We aim to drive the Internet policy debate in new directions by emphasizing a layered approach of technological innovation, user education, user self-help, industry self-regulation, and the enforcement of existing laws consistent with the First Amendment.  Such an approach is a less restrictive—and generally more effective—alternative to increased regulation.  

Here are some of the issues I’ll be working on as CIF’s Director in conjunction with my esteemed colleagues Adam Thierer, Adam Marcus, and adjunct fellows: 

  • Defending online advertising as the lifeblood of online content & services, especially in the “Long Tail”;
  • Emphasizing market solutions to problems of privacy protection, especially regarding the use of cookies and packet inspection data;
  • Protecting online speech and expression both in the U.S. and abroad;
  • Defending Section 230 immunity for Internet intermediaries;
  • Opposing online taxation and legal barriers to e-commerce and digital payments, especially at the state and local levels; and
  • Ensuring that Internet governance remains transparent and accountable without hampering the evolution of the Internet.

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Online Advertising & User Privacy: Principles to Guide the Debate

by on September 24, 2008 · 28 comments

By Berin Szoka & Adam Thierer Progress Snapshot 4.19 (PDF)

Since the fall of 2008, a debate has raged in Washington over “targeted online advertising,” an ominous-sounding shorthand for the customization of Internet ads to match the interests of users.  Not only are these ads more relevant and therefore less annoying to Internet users than untargeted ads, they are more cost-effective to advertisers and more profitable to websites that sell ad space.  While such “smarter” online advertising scares some—prompting comparisons to a corporate “Big Brother” spying on Internet users—it is also expected to fuel the rapid growth of Internet advertising revenues from $21.7 billion in 2007 to $50.3 billion in 2011-an annual growth rate of more than 24%. Since this growing revenue stream ultimately funds the free content and services that Internet users increasingly take for granted, policymakers should think very carefully about what’s really best for consumers before rushing to regulate an industry that has thrived for over a decade under a layered approach that combines technological “self-help” by privacy-wary consumers, consumer education, industry self-regulation, existing state privacy tort laws, and Federal Trade Commission (FTC) enforcement of corporate privacy policies.

In an upcoming PFF Special Report, we will address the many technical, economic, and legal aspects of this complicated policy issue-especially the possibility that regulation may unintentionally thwart market responses to the growing phenomenon of users blocking online ads.

We will also issue a three-part challenge to those who call for regulation of online advertising practices:

  1. Identify the harm or market failure that requires government intervention.
  2. Prove that there is no less restrictive alternative to regulation.
  3. Explain how the benefits of regulation outweigh its costs.

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