SCN: Privacy

[Steve]

x-no-archive: yes

========================

(Carl S. Kaplan, NY Times)---The goal of the plan announced by 
President Clinton's chief of staff, John Podesta, sounded admirable: 
to overhaul the nation's privacy laws, harmonizing a patchwork of 
inconsistent rules and extending to e-mail and mobile phone 
messages the same strict safeguards against government snooping 
that now apply to telephone calls.  

But in the fine print of Podesta's speech was a detail that some 
privacy advocates found alarming: a rollback of the tight privacy 
protections that many believe currently apply to Internet 
communications over cable modems and networks.  

In short, they say, the government is proposing to giveth somewhat 
and taketh away a lot.  

In response, the government's chief privacy officer, Peter P. Swire, 
said in an interview that a whittling down of certain features of cable 
privacy laws is necessary to prevent cable-based Internet networks 
from becoming a haven for criminals.  

Whichever side is right, the administration's announcement has 
kicked off what is likely to be an intensified debate over the level of 
privacy protection that online speech has from government 
interference.  

In prepared remarks for a National Press Club talk on July 17, which 
followed by some weeks the public disclosure of the F.B.I.'s 
controversial e-mail snooping software dubbed "Carnivore," Podesta 
made several recommendations for updating and fixing electronic 
privacy laws.  

Mainly, he pointed out that telephone calls currently receive 
significant privacy protection under two different federal laws while 
most e-mails receive less protection.  

For example, a federal prosecutor who wants to install a wiretap on 
a telephone line must get approval from a high-level official in the 
Justice Department before seeking a court order authorizing the tap. 
Moreover, a judge will issue an order only if there is "probable 
cause" to believe that one of a special list of serious crimes has 
been or will be committed by the target. To keep things on the 
straight and narrow, the law also requires that the wiretap evidence 
be suppressed if the government does not dot all the i's.  

When federal law enforcement agents want to intercept the contents 
of most real-time e-mails, they must also apply for a court order and 
demonstrate probable cause. But by contrast, they need not seek 
high-level Justice Department approval, the crime sought to be 
prevented can be any federal crime and there is no statutory 
suppression penalty if proper procedure is not followed.  

In arguing that all e-mails should be given the same enhanced 
protections as telephone calls, Podesta in effect declared that the 
telephone wiretap law should be the privacy baseline.  

By saying that, however, he also signaled his intention to greatly 
lower the standard that may be protecting a relatively small but fast-
growing class of e-mails and other electronic communications: 
messages created by users of cable-based Internet services.  

That's because the laws governing the cable television industry, the 
Cable Act of 1984 and the related sections of the 
Telecommunications Act of 1996 have privacy protections for cable 
subscribers that make the telephone wiretap laws seem positively 
pallid.  

Take a case where an F.B.I. agent wants to intercept real-time e-mail 
generated by a cable-modem user. Under section 551(h) of the Cable 
Act, the government has to secure a court order based on "clear and 
convincing evidence" that the target may be involved in a crime. 
That's a higher standard that the "probable cause" required for a 
phone tap.  

More significantly, the Cable Act requires that a cable service 
subscriber who is the target of a government request for information 
be given notice and the opportunity to contest the request in court. 
That wrinkle pretty much rules out the possibility of surreptitious 
interception of cable-Internet e-mails, said Paul M. Schwartz, a 
professor at Brooklyn Law School who specializes in privacy and 
the Internet.  

The Clinton administration appears to believe that applying the 
Cable Act to cable-based e-mails would deal a death blow to the 
ability of agents to secretly monitor communications over cable 
platforms, thus hampering law enforcement.  

"The problem under the Cable Act is that you must give prior notice 
before getting access to customer records," Swire, the government's 
privacy czar, said in a recent interview. "You can't give notice and 
still carry out lawful surveillance. Targets would stop revealing 
anything incriminating. If you know your [cable] modem is going to 
be tapped, you're not going to do that sort of business over that 
line."  

Swire added that the purpose of the Cable Act privacy protections 
was to safeguard the programming choices of cable television 
subscribers. He said that the government's draft privacy laws -- 
circulated to Congress earlier this week -- would retain the old cable 
protections against government snooping as they related to show 
lists.  

Civil libertarians and other privacy advocates remain unpersuaded. 
They ask: If there is to be uniformity in the privacy treatment of 
messages -- whether they be telephone calls, e-mails, cable-based 
e-mails or cordless phone communications -- why not set the 
baseline at the Cable Act?  

"The question here is whether to harmonize up or down," said Marc 
Rotenberg, director of the Electronic Privacy Information Center, a 
Washington-based privacy organization.  

"We think the Cable Act is one of the best privacy protections in our 
law. And we're not very pleased to bring it down," he said, adding 
later: "This is the first time the government is arguing that a privacy 
law currently in place is too strong and needs to be lowered. It's a 
very troubling thing."  

Rotenberg acknowledged that under the Cable Act the government 
would have to tip off a potential e-mail surveillance target before the 
surveillance began. But "so what if there is a tip off," he said. 
"Surreptitious surveillance is really a big deal. We're talking about 
government monitoring covertly the activities of its citizens. If there 
is not a procedure to make people aware of that, then we've gone 
pretty far up the curve to Big Brother surveillance," he said.  

Rotenberg also took issue with Swire's argument that the Cable Act 
privacy protections were designed to protect viewing habits only. 
When the law was passed in 1984, he said, "it's clear that Congress 
knew people would use cable-based systems for voting, online 
banking and other interactive activities."  

Barry Steinhardt, associate director of the American Civil Liberties 
Union, agreed the privacy baseline should be pegged more toward 
the Cable Act. A court order for e-mail eavesdropping based on 
"clear and convincing" evidence of crime is not too high, he 
maintained. "The interception of communications is very invasive 
and the standard ought to be high," he said.  

In his speech, Podesta said that more than 1.4 billion e-mails are 
exchanged every day. Of the 50 million households online in the 
United States, about 2.2 million log on to the Internet and send mail 
through cable modems.  

Legal experts say that it's an open question whether the Cable Act 
applies to cable-based Internet activities. Barbara Esbin, a 
Washington-based lawyer who specializes in communications law 
and who formerly worked at the Federal Communications 
Commission, said courts have split on the issue and that the F.C.C. 
has not yet issued a ruling -- although it is scheduled to address the 
issue in the fall.  

But it's clear the government is worried the Cable Act might apply. 
And some cable-based Internet service providers are acting as if it 
did. Swire said that he has been informed by the Department of 
Justice that some cable providers have been reluctant to turn over 
their Internet service records to law enforcement officials and have 
pointed to the Cable Act as their excuse. A report issued in March by 
the President's working group on Unlawful Conduct on the Internet 
also noted somberly that "some cable companies that provide 
Internet service have relied on the [Cable] Act to refuse to disclose 
subscriber information pursuant to state Grand Jury subpoenas."  

Copyright 2000 The New York Times Company  





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