[Ed. Note: this is the first in a series of blog posts addressing a range of technology and civil liberties issues we believe America’s next President and Congress will have the chance to take a fresh look at, and the opportunity to set a policy course for the Internet that will keep it open, innovative and free.]
One of the biggest mistakes a new administration might make in its first 100 days would be to ignore the impact technology has had on the privacy of our communications and the striking need to update the law accordingly. If the President fails to act early in his first term he will miss a window of opportunity that won’t soon reopen, and it will be to the detriment of the Internet economy and to privacy rights. The next President will have to resolve big-ticket items, like an economic meltdown, an unpopular war and an energy crisis. But when it comes to putting in place policies that will protect and promote Internet commerce, investing in timely solutions now will reap significant dividends for years to come.
The revolutionary growth of digital storage capacity and online communications services means that more and more of our lives are spent online. We send email through web-based services and have growing opportunities to store our calendars, address books and the like with online service providers. Increasingly, sensitive information that used to reside on in our desks, on our desktops or stored on our home computers is shared with or stored by third parties who then convey it to others. And when it does reside with third parties, our information loses much of the Fourth Amendment protection that it enjoyed when it was stored in your home digitally or on paper. For example, the government can easily require your web-based service provider to turn over an email message that you’ve saved for more than six months on your Gmail or Hotmail account – any web-based email account for that matter. The government does not have to prove to a judge that it has strong evidence – probable cause – that the message is relevant to criminal activity. To get that very same message saved on your desktop computer, the government would have to make that probable cause showing. In other words, current law discriminates against web-based applications in terms of the privacy they afford. This discrimination could put Internet technologies at a competitive disadvantage as consumers grow concerned about how private their information really is. This is bad for business, bad for consumers, and bad for privacy, and therefore important for the next President to address early on.
Location, Location, Location
Even more startling is the fact that current communications privacy laws do not specify a standard for law enforcement access to location information generated by “location aware” devices, including cell phones and laptop computers. Every moment a cell phone is turned on, it generates information that reveals the location of the person holding the phone. Cell phone service providers usually store that location information and law enforcement officials are increasingly seeking it to help them investigate and prevent crimes. Most people think that a comprehensive record of their location at any particular time is pretty sensitive information. But since the law specifies no standard for the police to get it, the courts have been struggling to divine a standard from a law that provides no explicit standard.
Window of Opportunity
It’s time for our communications privacy laws to be updated to account for new technologies. While the need to do this has been clear for some time, the political stars will be aligned early in the next President’s administration. Companies that provide new web-based applications want rules that put their services on an equal privacy footing with others, and law enforcement would benefit from clear standards and procedures. The current Administration’s focus on lowering the protections traditionally afforded to communications has effectively stymied any effort to update the law to account for new technologies. A fresh start from a new Administration with a more balanced approach is now overdue, and the first hundred days – the honeymoon period – is a good time to start.
More Work To Be Done
But updating communication law is not all that the new President should be doing to balance security and liberty in the digital age. CDT has posted an ambitious agenda for the new President called “Internet in Transition: Election 2008.” In addition to working with Congress to update electronic communications privacy laws, the new President should:
– Pledge to conduct no domestic surveillance for intelligence purposes unless it complies with FISA – the law Congress passed to facilitate intelligence surveillance while protecting civil liberties; – Curtail the use of National Security Letters – demands on businesses to turn over personal information without any prior judicial authorization; – Direct DHS to amend regulations issued under the REAL ID Act to include real privacy protections; and – Appoint a Chief Privacy Officer to advocate for privacy within the Executive branch and to work with Congress on a much-needed overhaul of the outdated Privacy Act of 1974.
It’s a full agenda, and there’s no time to waste.