SCN: Privacy

Fri Jun 7 07:38:33 PDT 2002

x-no-archive: yes

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(Lisa M. Bowman, ZDNet News)---From the Bill Gates e-mails 
unveiled during the Microsoft trial to the Enron debacle, the digital 
trails people leave have provided stunning insight into their beliefs 
and habits.  

Now the FBI is hoping to capture and corral more of our digital 
detritus in the name of fighting terrorism.  

The Senate Judiciary Committee on Thursday will examine 
proposed Justice Department guidelines that would give federal 
investigators new license to mine publicly available databases and 
monitor Web use. The changes, which come after a major FBI 
shakeup last week, have sparked intense debate over the merits of 
expanding government surveillance powers as the country faces 
ongoing threats of terrorist attacks.  

Backers paint the reforms as a long overdue end to restrictions 
that have hobbled investigators and denied them access to 
research tools that are available to anyone with an Internet 
connection. Intelligence failures in the FBI and CIA have come 
under the spotlight amid new questions about who knew what in 
advance of the Sept. 11 suicide hijackings, which left more than 
3,000 people dead.  

But civil liberties advocates warn that last week's proposal is the 
latest step along a worrying path back to the 1950s and '60s--days 
when investigators compiled dossiers on innocent American 
citizens based on their religious and political practices.  

"I hate to be in a position of telling people 'don't go online and 
speak' or 'watch what you say,' but you have to take from this that 
on an arbitrary basis, the FBI is going to be tagging people as 
terrorists based on what they say online," said Jim Dempsey, 
deputy director of the Center for Democracy and Technology.  

Since Sept. 11, Congress has enacted legislation that greatly 
expands law enforcement's ability to monitor communications 
through the so-called Patriot Act. America's allies have also sought 
to bolster laws aimed at aiding investigators, with the European 
Parliament last week approving guidelines that would force Internet 
companies to preserve data about their sites for possible future 
investigations.  

Last week's FBI guidelines from Attorney General John Ashcroft 
and FBI Director Robert Mueller would allow field agents to gather 
information outside of criminal investigations, relaxing regulations 
set in the 1970s.  

Those rules, named after then-Attorney General Edward Levi, 
barred the FBI from attending political meetings unless it had a 
reasonable suspicion that a crime was being planned.  

The new rules, by contrast, would authorize field agents to attend 
public meetings freely and request warrants with less interference 
from the main office. In addition, the rules would allow the FBI to 
monitor public Internet sites, libraries and religious institutions.  

Agency supporters say lifting of monitoring restrictions opens the 
gate to investigation tools that have been unaccountably denied to 
the FBI until now.  

In an opinion piece published this week in The Wall Street Journal, 
L. Gordon Crovitz, Dow Jones' senior vice president of electronic 
publishing, said his eyes were recently opened to undue restraints 
on the FBI during the investigation into the death of Daniel Pearl, a 
Wall Street Journal reporter who was kidnapped and murdered in 
Pakistan this year. In following the case, employees of the paper 
found that the FBI was restrained from keeping information as 
rudimentary as news clips, he wrote.  

Employees, he said, were "surprised to learn that the FBI's 
extraordinarily professional, highly trained agents were not given 
access to the kinds of online research services now common on 
the desks of cub reporters or junior salespeople."  

Privacy advocates, however, say the Net monitoring rule creates 
greater possibilities than ever before for abuses because 
technology makes it easier to whittle down people's habits and 
divide them into patterns that may or may not point to terrorism. 
The result, they say, could be a crackdown on political dissidents 
and people who visit anti-American chat rooms.  

For years, some people have worried that marketers would profile 
them in some potentially malevolent way by tracking their Web 
use. The FBI's involvement potentially raises the stakes.  

Technology ranging from data mining to surveillance cameras can 
be tied together to form an easily searchable database of people's 
religious, political and personal preferences. This enables the FBI, 
based on a hunch, to investigate--and possibly jail--people.  

Law enforcement for the most part has always been able to get 
information through a third party, such as a database company or 
an Internet service provider, via methods including subpoenas.  

However, the relaxed guidelines would let the FBI conduct 
investigations in publicly available nooks of the Web even if they 
aren't looking at a specific suspect or crime.  

"Such an approach to police authority in the United States is 
directly contrary to the First and Fourth Amendment and the 
system of checks and balances established by our form of 
government," a group of organizations including the American 
Library Association, the American Civil Liberties Union, and the 
Arab American Institute wrote in a letter this week to Senate 
Judiciary Chairman Patrick Leahy, D-Vt.  

"We are also concerned that the changes authorize unchecked 
surveillance of lawful religious and political activity, and that such 
surveillance will be targeted against Arab-Americans, Muslims and 
immigrants among others," the letter said.  

Others say the new surveillance culture is the price we have to pay 
to be safe in a post-Sept. 11 world.  

"The first business of government is to protect its citizens from the 
kind of threats we saw on Sept. 11," said Roger Pilon, vice 
president for legal affairs at the Cato Institute. "Nothing in these 
new guidelines in any way is in violation of constitutional 
protections. There's nothing illegal about compiling a dossier."  

Pilon compares the FBI's plan for more patrolling of public Web 
spaces to a beat cop walking the neighborhood.  

"It has been objected that this will allow agents to monitor perfectly 
legal behavior--that's true," he said. "The cop working the beat 
observes legal behavior. The reason for walking the beat is to 
engage in a more proactive effort to prevent crime."  

Meanwhile, those who compile databases are grappling with the 
plan, wondering if they're going to be forced into the role of 
skippers on new FBI fishing expeditions.  

Jerry Cerasale, senior vice president of government affairs for the 
Direct Marketing Association, said his group is still crafting a 
response to the FBI proposal.  

"Our guidelines say marketing data can be used for marketing 
purposes only," he said. "This is a new twist."  

Cerasale said his members have long had to balance law 
enforcement needs with privacy rights, but until now, the process 
has involved a subpoena.  

"You don't just give out an address to law enforcement officials, 
although the FBI would like that to happen," he said.  

Furthermore, previous attempts to tie databases to crime have 
often failed, underscoring the risks of relying on technology as a 
cop.  

For example, Cerasale said that despite protests from his group, 
the IRS eventually got its hands on the list of subscribers to Car 
and Driver Magazine, hoping to catch tax cheats by scouring 
groups of people interested in expensive cars. However, the 
search led to little more than a few teenage car fans who hadn't 
filed taxes, Cerasale said.  

The incident is cited as one more example of the limitations of 
technology. And the list of failed searches for a silver cyberbullet 
grows longer by the day. Some airports, for example, have 
removed face-recognition technology after it failed to identify 
people more than half the time.  

What's more, law enforcement's reliance on technology has 
actually tripped up some investigations. According to internal FBI 
documents obtained by the Electronic Privacy Information Council, 
a privacy watchdog, glitches in the Carnivore snooping system--
namely, the over-collection of information on innocent individuals--
led to the destruction of e-mails from a subject with ties to Osama 
bin Laden.  

But all the hand-wringing over information gathering may be for 
naught if cops can't connect the dots on the data they do collect. A 
series of revelations in recent weeks has shown that the FBI and 
CIA had gathered data hinting or warning of the Sept. 11 attacks 
but failed to coordinate and respond to the information.  

In one case, investigators overlooked a memo from a Phoenix field 
office warning that potential terrorists were enrolling in flight 
schools. In another case, a Minneapolis agent told FBI Director 
Mueller that bureaucratic bungles thwarted her investigation into 
the so-called 20th hijacker Zacarias Moussaoui.  

"I think the lesson of the last month or so--the revelations of the 
government's handling of the bits of information it had--is that there 
was not a failure at the information-gathering level," said Lee Tien, 
an attorney with the Electronic Frontier Foundation (EFF). "There 
was a failure of information going to the right place."  

The problem is so severe that the Senate and House intelligence 
committees are beginning an in-depth series of meeting into the 
matter this week.  

That's not to say that technology can't play an important part in 
nabbing suspected terrorists. Police have caught rapists and 
murderers by retracing digital footprints as mundane as a subway 
card reader. FBI agents have used the Web to snare child 
pornographers and drug dealers.  

And on Tuesday, FBI Director Mueller gave another nod to the 
tech world, announcing the appointment of longtime IBM executive 
Wilson Lowery as his special assistant to oversee the agency's 
restructuring.  

"He combines the precision and insight of a chief financial officer 
with the vision and leadership of an executive comfortable with 
change, technology and global issues, " Mueller said in a 
statement about Lowery.  

But the focus on technology still doesn't solve the basic problems, 
says the EFF's Tien.  

"The continual question of 'can't we do more with technology?' I 
think really misses the point," Tien said. "The weakest link in our 
intelligence is a lack of understanding of what's going on, on the 
ground. There is no quick fix."  

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