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Keep Your Hands off My Internet!

November 20, 2012

It was revealed today that Senator Patrick Leahy (D-VT) was planning to propose an amendment to a Senate Bill ostensibly designed to protect Americans’ e-mail privacy (a good thing!). The amendment would essentially undo all of the good the bill proposed by allowing a number of federal agencies (including the FBI and the National Labor Relations Board (!?)) the ability to access your e-mail without a warrant and without notifying you for up to a year. In addition, ANY government agency would be allowed to warrantlessly access your e-mail in an “emergency situation,” which, conveniently, is not defined.

Luckily, this revelation sparked a flurry of public outcry over the proposal, causing the good Senator to reverse himself today. The troubling piece of that reversal, however, is that his aides indicate he is only against “broad exceptions” to the rule. What that means is, for the moment, anyone’s guess.

This maneuver is only the latest attempt of government intrusion into the operation of the internet. Again, ostensibly this bill was designed to close some gaps in the current Electronic Communications Privacy Act, which, as the linked article points, was written prior to the “black-and-white Macintosh Plus.” The original intent was to protect your e-mail in the same way your physical mail is protected, i.e. make a clear requirement for a search warrant before opening it. In accordance with the insidious precedent set by the PATRIOT Act, however, it appears some gigantic loopholes were inserted at the bequest of the alphabet soup of government agencies which would have allowed the anonymous intrusion into your records. (I’m still confused how the NLRB was allowed into the mix, though). This is in addition to the original loophole allowing government agencies to obtain your location history from your cell phone GPS without a warrant.

Unfortunately this type of attack is unlikely to stop any time soon. Admittedly we are in an area of concern, as the proliferation of the Internet has far outpaced the government’s ability to keep pace with the legal ramifications of our activities on it. Piracy is a significant issue which should be addressed, as companies are being denied their due compensation (although I think the legal definition of their due is far too large, but that’s the subject of another post). And there is the matter that the laws have not been updated to keep pace with the privacy concerns of online activities and communications, as this bill was originally meant to do.

The problem, however, is, as usual, the interference of special interests, both outside and inside the government. You may remember the outcry that arose over the propose Stop Online Piracy Act (SOPA) and its Senate counterpart, the Protect IP Act (PIPA, which, not coincidentally, Mr. Leahy was associated with). These bills caused the internet to go into an uproar and essentially threaten to shut down. On first glance these were good bills, designed to protect the interests of those who worked hard to create products people want and to ensure they were compensated for them.

The bills were fundamentally flawed, however, as they placed an enormous burden on the site to defend itself, rather than on the creator to proactively protect itself. As an example, a single link in a single review on Amazon.com which pointed to suspected illegally hosted content could result in the whole site being shut down by the ISP with no notice to Amazon, and no time for it to try to correct the potential issues. Such requirements would essentially stop the free flow of information and idea exchange which has made the internet the wildly successful marketplace that it is.

This marketplace should be protected and enhanced in a way that is beneficial to all involved, in cooperation with corporate and individual interests. Several groups already exist to effect this change, including the Digital Due Process coalition, which includes member companies Apple, Facebook, eBay, Google, Twitter, Microsoft, IBM, Intel, and others (if there’s another issue which can effectively unite a mix of old-school technology companies with upstart social media brands, I’d like to see it). The coalition’s principles are pretty well summarized on its “Our Principles” page:

  • A governmental entity may require an entity covered by ECPA (a provider of wire or electronic communication service or a provider of remote computing service) to disclose communications that are not readily accessible to the public only with a search warrant issued based on a showing of probable cause, regardless of the age of the communications, the means or status of their storage or the provider’s access to or use of the communications in its normal business operations.
  • A governmental entity may access, or may require a covered entity to provide, prospectively or retrospectively, location information regarding a mobile communications device only with a warrant issued based on a showing of probable cause.
  • A governmental entity may access, or may require a covered entity to provide, prospectively or in real time, dialed number information, email to and from information or other data currently covered by the authority for pen registers and trap and trace devices only after judicial review and a court finding that the governmental entity has made a showing at least as strong as the showing under 2703(d).
  • Where the Stored Communications Act authorizes a subpoena to acquire information, a governmental entity may use such subpoenas only for information related to a specified account(s) or individual(s). All non-particularized requests must be subject to judicial approval.

These seem like reasonable ways to manage internet privacy. Hopefully we can convince our representatives of the same.

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