The only thing we have to fear is fear itself.

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The only thing we have to fear is fear itself.
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• Courage, Dignity and Intellectual Flexibility

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Signing of the USA-PATRIOT Act of 2001
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U.S.A-PATRIOT Act

• Uniting and Strengthening American by Providing
  Appropriate Tools Required to Intercept and
  Obstruct Terrorism
• Longest federal emergency legislation in American
  history
• Ten sections banking, money laundering, victims
  rights, etc.
• Amends educational records, secret courts and
  electronic communications laws

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On the one hand

• Not the ubiquitous oppressor it is sometimes made
  out to be
• Did not create secret courts
• Foreign Intelligence Surveillance Act 1978
• Not responsible for detentions
• DOJ strategy material witness
• Or enemy combatants and torture
• Bush Administration constructions but not
  codified in this particular law

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and on the other hand

• Patriot Act does expand the surveillance powers
  of law enforcement
• Expanding (not creating) time for notice in
  sneak and peak orders
• If notice would interfere with investigation
• Create new gag orders on records disclosure
• No established means to challenge legal papers
• Break down and/or blur the distinction between
  intelligence investigations and Title III
  court criminal investigations
• Lower hostile foreign power connection FISA
  standard from the to a reason for
  investigation

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Electronic Communications Privacy Act

• No liability for disclosure
• Emergency
• Reasonable belief of danger to life and limb
• Required
• Below 4th Amendment showing
• file a paper with a clerk
• Get network flow log information
• Internet protocol addresses, session times,
  subject lines
• Computer Trespass
• If owner-operator invites law enforcement,
  subject has no expectation of privacy

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So Whats the Problem?

• Emergency
• What constitutes reasonable belief?
• How to control the damage of poor judgment?
• How to institutionalize the procedure?
• www.cit.cornell.edu/oit/policy/memos/PatriotAct.ht
  ml

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So Whats the Problem?

• Required
• Shouldnt non-content be available to law
  enforcement for less than 4th Amendment standard?
• Thats the law, but is the law mapped with the
  technology?
• IP addresses browser web site/content?
• Subject lines content?

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Nota Bene..

• Foundational problem lies in the original law
• One of the most poorly written and confusedly
  interpreted law
• Stored, transmitted, e-mail, voice standards
• Collapsed telephony and data networking
• But they are not the same technologies!

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So What is the Problem?

• Computer Trespass
• Law does not exactly define it technologically
• Virus or worm infection? Security incident?
  Compromise? No technical descriptions
• Law creates some boundaries
• This and no other
• But does not define confines
• How to stop?
• And fails to mention that any information
  gathered can be used for further/other
  investigations
• Does not cabin invitation
• Can I help you?

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Sunset Provisions

• Expire at the end of this year. Why?
• Because they are untethered to terrorist claims
• On the desk of AG before 9/11
• Examples of blending and blurring of terrorism
  with non-terrorist criminal activity
• Should there be blurred distinctions?
• AG says no
• German law yes, so as not to create the
  potential for abuse and a police state

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Privacy and ITs Discontents
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So What is the Problem?

• Americans have a deep and enduring sense of
  balance about national security and civil
  liberties.
• But American law lacks a coherent and
  contemporary framework for privacy
  considerations.
• The absence of this framework weakens civil
  liberties, especially in the face of fear,
  challenging our sense of balance in search for
  ordered liberty.

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Privacy Its Different Legal Meanings and
Expectations

• Warrant and Brandeis Right to Privacy 1890
• Torts and private rights of action
• Based on property law
• Reaction to Yellow Journalism
• And technology consumer camera
• Prosser, On Torts, 1960 catalogue
• Intrusion upon seclusion
• Public disclosure of private facts
• False light
• Misappropriation of likeness

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Privacy Its Different Legal Meanings and
Expectations

• Constitutional Law
• Criminal Procedure
• 4th Amendment
• No search or seizure without probable cause of
  criminal activity and judicial oversight
• At issue for government surveillance
• Olmstead 1928
• no intrusion on person
• Katz
• Overrules Olmstead
• 4th A. protects people, not places
• Wiretap Act 1968

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Constitutional LawPersonal Privacy

• Griswold v. Conn. 1965
• right of privacy
• Information and birth control materials for
  married couples
• penumbra of 1,3,4,5,9 Amendments
• Eisenstadt v. Baird 1972
• Right to information and birth control for
  unmarried individuals
• Roe v. Wade 1973
• Right to abortion in first trimester

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Public Privacy Acts

• Fair Credit Reporting Act 1970
• Privacy Act 1974
• Family Education Rights Privacy Act 1974
• Electronic Communications Privacy Act 1986
• Computer Matching and Privacy Protection Act 1988
• Video Privacy Protection Act 1988
• Cable Communications Privacy Act 1989
• Telephone Consumer Protection Act 1994
• Health Insurance Portability Accountability Act
  1996
• Financial Services Modernization Act 1999

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Observations

• Patchwork, but no quilt!
• Some principles
• Fair Information Practices
• But no comprehensive framework
• Cf Declaration of Rights
• Privacy as a right grounded in the dignity of the
  individual
• Technological age information about an
  individual
• EU Directives
• Internet Protocol address regarded as personally
  identifiable information.

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What is privacy in the Information Age?

• Every time you intersect with the society
• Birth, education, government benefits,
  banking/financial, medical, debtor/creditor
  relationships, travel, telecommunications use,
  death, drivers license, car registration,
  address, etc.
• Data mining, marts and dossiers
• Breaches, identity theft, notifications
• Confessional, Kafkaesque society?

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Secrecy Paradigm of Privacy

• Once personally identifiable information is
  disclosed, it is public
• You dont own it
• Or have any legal right to it or say over it
• Any one can compile it, store it, sell it -- and
  they do!
• Any one can hack into that compilation -- and
  they do, usually for nefarious purposes
• Or buy it, including the government (JetBlue) or
  criminals -- and they do!

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Existential Questions

• Who are you?
• What constitutes identity?
• What factors shape you?
• Your citizenship obligations to society?
• Autonomy from society to define yourself?
• Does technology and information have power?

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History will note

• Whether technology shapes society or society
  shapes technology depends on you.

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What the world needs now

• Courage, dignity and intellectual flexibility to
  confront the 21st century challenges to our
  national security.
• A legal framework for privacy that addresses
  technological change and the meaning of
  information in contemporary American society.

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Why?

• So that from a position of strength, not fear,
  and with reference to our enduring political
  values, not political expediencies, we can we can
  do the work necessary to strike balance in our
  cherished sense of ordered liberty.