A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology
(1) CDT Report Finds Changing Technology Makes Government
Surveillance More Intrusive
(2) Expanded Online Storage Raises Privacy Issues
(3) Location Technologies: The Future Of Surveillance
(4) Keystroke Loggers: Government Spyware
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(1) CDT Report Finds Changing Technology Makes Government Surveillance
More Intrusive
Against the backdrop of debate over warrantless wiretaps and
Administration calls to amend the Foreign Intelligence Surveillance Act,
CDT today released a report about how privacy law has failed to keep pace
with technology. The report, entitled "Digital Search & Seizure: Updating
Privacy Protections to Keep Pace with Technology," calls for an in-depth
Congressional review of the ways digital technology makes government
surveillance easier and more intrusive.
CDT's report focuses on three developments:
- Online storage: Personal information that people used to keep in
paper files or on computer hard-drives is increasingly stored online,
beyond the physical confines of the home or office.
- Location technologies: Cell phones, car navigation services and
other communications devices can provide increasingly precise
location information.
- Keystroke loggers: Programs known as "keystroke loggers" record all
information typed into a computer and can be installed
surreptitiously, even remotely.
Every day, Americans use the Internet and wireless services to create,
access, transfer and store vast amounts of private data. More and more of
our lives are conducted online and more of our personal information is
transmitted and stored electronically. Services like online storage of
email and location capabilities built into cell phones offer tremendous
convenience but also generate large amounts of data revealing our
thoughts, associations and whereabouts.
The report argues that, under current privacy rules, this personal
information receives inadequate protection against government intrusion.
Personal information held by service providers is accessible to the
government under weak standards based on outdated Supreme Court decisions
and statutes written before the World Wide Web even existed.
CDT calls on the courts, Congress and technology companies to respond. The
Internet and communications industry, public interest groups and the
government need to enter into a dialogue to find the proper balance that
will ensure that the fundamental right of privacy is protected as
technology changes.
"Digital Search and Seizure: Updating Privacy Protections to Keep Pace
with Technology'" (Feb, 2006)
http://www.cdt.org/publications/digital-search-and-seizure.pdf
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(2) Expanded Online Storage Raises Privacy Issues
Many online services -- ranging from email to online calendars to the
storage of voice telephone calls made possible by Voice over Internet
Protocol technology -- provide volumes of storage capacity that were
unimaginable twenty years ago when current privacy laws were drafted.
Although leading service providers promise consumers relatively strong
protections in their privacy policies and adhere to those promises in
commercial contexts, privacy policies have exceptions for government
demands and the rules for government access are often weak.
The Supreme Court has held that the Fourth Amendment, which safeguards
individuals from unreasonable government searches and seizures of their
"persons, houses, papers, and effects," protects not only a person's home
or apartment and his physical person, but also the content of his
telephone calls. While the Court has never explicitly ruled on email, it
seems logical that the same Fourth Amendment protection would apply to
email in transit.
However, in a series of cases in the 1970s, the Supreme Court held that
the Fourth Amendment does not apply to personal information contained in
records held by third parties.
CDT questions whether this "business records doctrine" is still
constitutionally sound, given the revealing nature of the huge amounts of
transactional data generated by electronic systems today. It was developed
when courts did not foresee the ability of a communications service
provider to store the content of communications and documents that the
subscriber never intended the service provider to read or use. Nor did
courts anticipate the role of the Internet in decentralizing data storage
outside the home or office.
The business records doctrine played an important role in shaping the
Electronic Communications Privacy Act of 1986 (ECPA), which draws many
fine distinctions that leave much stored email only weakly protected, to
an extent that would surprise most users.
In particular, messages and documents stored with Webmail providers are
entitled to weaker protections than those stored on users' computers.
While the government needs a judicial warrant to search your computer, it
may be able to peruse your Web-mail account with only a subpoena, issued
without judicial review, without any specific suspicion of wrongdoing on
the part of the user, and often without notice to the person whose data is
being disclosed.
CDT's report urges Congress and the courts to recognize that the business
records doctrine is not applicable to stored email and to protect all
stored email with the warrant requirement.
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(3) Location Technologies: The Future Of Surveillance
Clandestine electronic tracking devices have been widely used by
government agents for many years, but today's location tracking
capabilities are qualitatively unique. Unlike earlier location tracking
devices (such as electronic "beepers"), today's advanced tracking devices,
which can be found in cell phones and car navigation systems, do not
merely substitute for real-time visual surveillance -- they provide remote
monitoring of movements, including in locations not visible from public
spaces.
Location technologies offer consumers added safety, security and
convenience. Nevertheless, the location information that these devices
generate constitutes a record of the user's movements that government
agents can monitor in real-time or scrutinize retrospectively.
Location information can reveal a person's acquaintances and physical
destinations such as medical clinics, government services buildings and
commercial establishments. Such data may imply -- correctly or incorrectly
-- additional information about the individual, including preferences and
associations. Without assurance that one's movements are not arbitrarily
being watched and recorded by the government, full exercise of the freedom
of association will be chilled.
CDT recognizes the value of location information for legitimate law
enforcement and intelligence purposes. At the same time, appropriate legal
standards must be established by the courts and, in the absence of
judicial action, by Congress to safeguard privacy rights against
indiscriminate government surveillance of individuals' movements and
activities.
CDT's report reviews recent decisions by federal magistrates applying a
probable cause standard for all government access to location information.
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(4) Keystroke Loggers: Government Spyware
Keystroke loggers are computer programs that record every keystroke on a
computer. The programs have legitimate uses, such as monitoring
productivity in the workplace, but when installed by government agents to
monitor computer use, they are essentially government spyware. They
illustrate the widening gap between privacy protections and the growing
potential of surveillance tools available to the government.
With keystroke logging surveillance, the government can obtain access to a
complete picture of what people are doing on their computers. In
comparison to a standard search and seizure of computer evidence,
keystroke logging programs are especially intrusive because they are
installed and operated without contemporaneous notice to the person whose
files are being seized. They can record documents and messages that
individuals choose to delete or never send, thereby allowing the
government to view the inner thoughts of its surveillance targets. In this
sense, they are even more intrusive than wiretaps.
The use of keystroke loggers raises privacy concerns not contemplated by
the current legal standards courts apply to determine whether a search has
been conducted in a lawful manner. None of the existing laws is directly
responsive to the technology's unique features. They all fail to address
some of the most egregious privacy invasions that could result from this
method of surveillance.
CDT believes that the federal wiretap law should be amended to extend its
special protections to the installation and use of keystroke loggers.
Until Congress makes statutory changes, judges considering search warrant
applications for installation and use of keystroke loggers should use
Fourth Amendment principles to impose strict warrant requirements on the
use of keystroke loggers.
Additional resources on electronic surveillance laws:
http://www.cdt.org/security/guidelines/
http://www.cdt.org/wiretap/wiretap_overview.html
CDT's resource page on the NSA controversy:
http://www.cdt.org/security/nsa/briefingbook.php
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Detailed information about online civil liberties issues may be found
at http://www.cdt.org/
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/4
Excerpts may be re-posted with prior permission of dmcguire@cdt.org
Policy Post 12.4 Copyright 2006 Center for Democracy and Technology
--
Michael Clark, Grassroots Webmaster
mclark@cdt.org {mailto:mclark@cdt.org}
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Center for Democracy and Technology
1634 Eye Street NW, Suite 1100
Washington, DC 20006
http://www.cdt.org/
voice: 202-637-9800
fax: 202-637-0968
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