September 6, 2000 5:35 PM PDT

Little expected from politicians on privacy law

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August 23, 2000
WASHINGTON--The FBI's "Carnivore" online surveillance technology is again in the spotlight this week, as representatives from the law enforcement agency join a wide range of witnesses gathered to testify before Congress on issues relating to Internet privacy.

Both House and Senate committees today held hearings on the topic, where politicians voiced a bipartisan desire to restrain online privacy violations by both employers and the government.

"America's Internet users are legitimately concerned that surfing the Internet is like walking in a big city at night--the enjoyment is tempered by a fear of what's lurking unnoticed in the dark alleys," said Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, at his committee's hearing.

Several recent polls list online privacy at or near the top of consumer concerns, and politicians are sensitive to that with the November elections fast approaching. While legislators today expressed a common concern that consumers face the possibility of significant privacy violations, little immediate action is likely given that there is less than a month left before this Congress adjourns.

Dozens of privacy bills have been introduced this session, but uncertainty over the proper approach, combined with the topic's complexity, has meant that little legislation has passed. Still, many experts expect the next Congress, which will be sworn in next January, to move aggressively on privacy, and the bills that have been debated in this Congress will provide a framework.

"The statutory and constitutional framework governing electronic surveillance has been outpaced by technological change," online privacy advocate James Dempsey, senior staff counsel for the Center for Democracy and Technology, told senators. In fact, the last sweeping privacy legislation passed was in 1986, some witnesses noted, before widespread use of the Internet.

Law enforcement vs. Big Brother
Members of both parties have concerns with the FBI and other law enforcement agencies and their online policing tactics.

"The FBI is pushing the envelope," said Sen. Patrick Leahy, D-Vt., ranking Democrat on the Senate Judiciary Committee.

Rep. Melvin Watt, D-N.C., the highest-ranking Democrat of the Constitution subcommittee of the House Judiciary Committee, said at that subcommittee's hearing that he found himself in agreement with conservative Rep. Robert Barr, R-Ga., regarding online government investigations.

"The left is there and the right is there" in sharing concern, Watt said.

Watt called the possibility that law enforcement officials would increasingly use lesser standards of criminality in seeking online warrants "a scary proposition."

Kevin DiGregory, Justice Department deputy assistant attorney general, testified at both hearings and insisted that the federal government merely wanted to have the same investigative tools online that it has in traditional investigations.

Even as members expressed concern that the FBI's Carnivore packet sniffer examines email of innocent parties not under investigation, DiGregory repeated a departmental complaint that federal law enforcement officers must seek court orders to track online criminals in each jurisdiction in which the suspected Internet traffic passes through.

Hatch said he didn't want the government to turn into George Orwell's Big Brother, but he also praised the efficiency of criminal investigators, noting the quick arrest of a suspect in a hoax regarding Emulex that resulted in a temporary $2 billion loss in the company's market capitalization.

DiGregory told senators that the controversy surrounding "the unfortunately named Carnivore" was distracting from the real and growing threat of online death threats, extortion, child pornography and fraud.

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Online privacy
Still, at the House hearing, Rep. Asa Hutchinson, R-Ark., shared Watt's concern regarding what standard is necessary for law enforcement to obtain the right to monitor email or to note to or from whom email is being sent.

Noting that the FBI can simply tell a judge that it needs to begin a trace, Hutchinson said, "My goodness, there are all kinds of ongoing investigations." He's advocating a higher standard that would force the government to demonstrate that a crime is likely being committed or about to be committed.

Today was the final day the Justice Department accepted applications for an independent review of Carnivore, which is expected to conclude by Dec. 1. However, several members expressed concern that multiple restrictions the DOJ has placed on that review--to protect confidential FBI procedures from public exposure, for example--has led to many prominent universities and think tanks backing out of the application process.

"Will (the DOJ) be able to get the best people?" Hatch asked.

The role of Internet service providers
Several ISPs have balked at allowing the FBI to install its so-called Carnivore black box to sniff email packets, and at least one major ISP refused to cooperate entirely.

There's a long-standing tradition of ISPs handing over information when requested by law enforcement, just as a phone company does, but Carnivore's hardware removes ISPs from any role in the investigative process while requiring them to install equipment on their servers with specifications that are kept secret by the FBI.

The Center for Democracy and Technology's Dempsey said ISPs should be allowed to gather the information under a wiretap authority on their own. "We're already pretty far down the road in having ISPs play a role," he said.

"I have a big problem with that," Hatch replied, saying that a nongovernment entity might not adhere to rules of evidence and could compromise an investigation. He was supported in that position by Vinton Cerf, a WorldCom senior vice president who testified as a trustee of the Internet Society.

However, Jeffrey Rosen, a George Washington University law professor, agreed with Dempsey, arguing that the fact that the government has the capability of monitoring a non-suspect's email "greatly increases the uncertainty of citizens."

Monitoring of employees
Just as members of both houses expressed concern with government monitoring of people online, some also expressed concern at the growing trend of employers using software to monitor the activities of their employees.

"A lot of people don't know this yet, but for all intents and purposes, the computer you use at work can watch your every move," Sen. Charles Schumer, D-N.Y., told the House subcommittee of which he was once a member. Schumer has introduced a bill in the Senate that would require an employer to notify employees if it uses monitoring technology, and a similar bill has been introduced in the House by the Constitution subcommittee chairman Charles Canady, R-Fla., and Barr.

Canady acknowledged that time is running out in this Congress to enact privacy legislation. "If we don't do something soon this Congress will be over," he said.

His subcommittee has scheduled a Sept. 14 debate and vote on the employee monitoring bill and on bills that would clarify to what extent the federal government can conduct online investigations. However, even if those bills were to emerge from Canady's subcommittee, they would still need to clear the full Judiciary Committee, be approved on the House floor, and then be taken up and voted on in the Senate.

Congress plans to adjourn the first week of October.

 

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