{"id":4,"date":"2009-01-02T09:28:38","date_gmt":"2009-01-02T14:28:38","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/internetahead\/?p=4"},"modified":"2009-01-02T09:31:27","modified_gmt":"2009-01-02T14:31:27","slug":"privacy-part-i","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/internetahead\/2009\/01\/02\/privacy-part-i\/","title":{"rendered":"Privacy: Part I"},"content":{"rendered":"

As a candidate, Present-elect Obama made little mention of privacy laws and the abuses committed by the Bush administration (for example, through the PATRIOT Act).\u00a0 However, in his technology position paper, “Connecting and Empowering All Americans Through Technology and Innovation<\/a>“, Obama promises to “safeguard our right to privacy” by:<\/p>\n

    \n
  1. Ensuring that terrorism-fighting mechanisms and information are not <\/span>abused.<\/li>\n
  2. Updating surveillance laws and ensuring that other methods of law <\/span>enforcement are carried out appropriately.<\/li>\n
  3. Protecting “particularly sensitive kinds of data”:\u00a0 for example, online <\/span>health records.<\/li>\n
  4. Tracking down cyber-criminals to crack down on spam, spyware, <\/span>phishing, etc.<\/li>\n<\/ol>\n

    In this post, we will discuss the first two of these issues, the issues most closely related to the post-September 11th developments in privacy as the Bush administration began to exercise more control over the counterterrorism intelligence gathering process. \u00a0<\/p>\n

    \u00a0<\/p>\n

    Privacy Issues:\u00a0 NSA Wiretapping and the ECPA<\/strong><\/span><\/p>\n

    In particular, there has been controversy over the warrantless data mining and wiretapping done by the National Security Agency (NSA) as part of a program approved by President Bush to search for terrorists.\u00a0 The secretive surveillance program, revealed by this article<\/a> in the New York Times<\/em>, allowed the NSA to search through large amounts of telephone and Internet communications both inside and outside of the United States. \u00a0<\/p>\n

    The revelation sparked a large outcry from privacy advocates, one that intensified when the Bush administration proposed legislation that would both expand the government’s domestic surveillance power and retroactively protect the telecommunications companies that assisted the NSA wiretapping process.\u00a0 The bill would be used to update the Foreign Intelligence Surveillance Act<\/a> (FISA), a 1978 bill used to allow “electronic surveillance in the context of foreign intelligence gathering” while “strik[ing] a delicate balance between national security interests and personal privacy rights”.<\/p>\n

    Originally, Obama opposed this invasion of privacy\u2014this is made obvious by his policy paper on technology.\u00a0 However, in a July 2008 note<\/a> that he wrote to the public, Obama changed his position on the FISA matter, claiming that the bill was the best solution possible.\u00a0 To further defend his new position, Obama’s campaign staff claimed<\/a> that the “fact that there [was] an open forum on BarackObama.com where supporters [could] say whether they agree or disagree [spoke] to the strength of [their] campaign”.\u00a0 Nevertheless, the candidate’s supporters were extremely angered by the decision, and groups like the EFF continue to fight<\/a> for the repeal or reform of the new FISA bill.\u00a0 It will be interesting to see how the new Obama administration will address these issues in the upcoming four years.<\/p>\n

    Another online privacy issue that has been addressed by the EFF and other privacy groups is the Electronic Communications Privacy Act<\/a> (ECPA). This act\u2014passed in 1986 to reform the Wiretap Act of 1968\u2014extended restrictions on wiretaps to include online communications.\u00a0 Specifically, the ECPA requires a court order for the government surveillance of “wire, oral, or electronic communications.”, and Title II of the act (the Stored Communications Act<\/a>) regulates the circumstances under which a provider of electronic communication services (ECS) or of remote computing services (RCS) can provide information about emails or other forms of online communications.\u00a0 According to the Stored Communications Act, a “governmental entity” may demand the disclosure of the contents of an opened e-mail or any e-mail that has been in storage for more than 180 days.\u00a0 This can be done, according to Section 2703(b)<\/a>, without required notice to the customer provided that the government obtains a warrant, court order, or administrative subpoena.\u00a0 According to the EFF, this act needs to be reformed in order to be more in line with “recent technological developments and Americans’ expectation of online privacy”, specifically so that privacy of online data doesn’t depend on how long it has been stored. \u00a0<\/p>\n

    \u00a0<\/p>\n

    Recommendations<\/strong><\/span><\/span><\/p>\n

    President Obama will have the difficult job of maintaining the appropriate balance between national security and the privacy rights of U.S. citizens.\u00a0 While the Bush administration has gone too far in the direction of government control and invasions of privacy, there is still some merit in insisting on surveillance measures in the name of protecting the nation.<\/p>\n

    For this reason, we recommend that Obama evaluates the programs he has in place and then reform them to be more in line with today’s standards of technology and privacy needs.\u00a0 First, the FISA Amendments Act needs to be reformed.\u00a0 The protection of illegal, warrantless wiretapping is and never should be justified.\u00a0 The NSA wiretapping program was a blatant violation of the Fourth Amendment guarantee against “unreasonable searches and seizures”, particularly those done without probable cause.\u00a0 Although the NSA should undoubtedly have more powers to conduct surveillance in the name of counterterrorism, these powers should never involve violations of the fundamental rights of the Constitution.\u00a0 For this reason, telecommunications companies should not have been protected for assisting the government’s illegal wiretapping.<\/p>\n

    Secondly, the ECPA should also be reformed and clarified.\u00a0 The government must develop standards beyond those of opened\/unopened and the 180 days rule.\u00a0 These categories are not only arbitrary, but are also unnecessary.\u00a0 Moreover, the PATRIOT Act has amended the ECPA to relax the standards for Internet surveillance to be in line with the standards of telephone dialing.\u00a0 The standards for phone usage are already too weak, and both measures should be reformed.\u00a0 Governmental entities should be required to prove the relevance of their surveillance beyond telling a judge that information is necessary to their investigation.\u00a0 There should be standards for how and why they conduct Internet and telephone surveillance; specifically, a probable cause standard should be used.\u00a0 Applying this Fourth Amendment standard to all e-mail communications\u2014regardless of how old they are\u2014and other private online content (no matter where it is stored) is important to protect Americans in this increasingly digital age.\u00a0 We believe that this will not hinder any counterterrorism investigations; if it does, then national security experts should have to explain the potential harms of using probable cause.<\/p>\n

    In these ways, the Obama administration will hopefully be able to strike the proper balance between security and privacy over the next few years.\u00a0 President Obama should maintain his promises to the nation outlined in his policy paper by ensuring that the proper reforms are made before irreparable damage is done to the values of the U.S. Constitution.<\/p>\n","protected":false},"excerpt":{"rendered":"

    As a candidate, Present-elect Obama made little mention of privacy laws and the abuses committed by the Bush administration (for example, through the PATRIOT Act).\u00a0 However, in his technology position paper, “Connecting and Empowering All Americans Through Technology and Innovation“, Obama promises to “safeguard our right to privacy” by: Ensuring that terrorism-fighting mechanisms and information […]<\/p>\n","protected":false},"author":2003,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-4","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/posts\/4","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/users\/2003"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/comments?post=4"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/posts\/4\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/media?parent=4"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/categories?post=4"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/internetahead\/wp-json\/wp\/v2\/tags?post=4"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}