March 8, 2000
Janet Reno, Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington DC 20530-0001
Dear Attorney General Reno:
The report entitled "The Electronic Frontier: the Challenge of Unlawful Conduct Involving the Use of the Internet" (by the President's Working Group on Unlawful Conduct On the Internet) raises a number of civil liberties concerns. We urge you to reject a number of the report's recommendations and to clarify others.
- Anonymity on the Internet is not a thorny issue; it is a Constitutional right. The United States Supreme Court held that the Constitution grants citizens the right to speak anonymously. (See McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).) However, the report treats the anonymity of Internet users as a "thorny issue," rather than a constitutional right. Indeed, the report suggests that the identity of individuals along the "Information Superhighway" should be stripped away to deal with purported problems with the Cable Communications Policy Act of 1984 and various telephone harassment statutes. An end to Internet anonymity would chill free expression in cyberspace and strip away one of the key structural privacy protections enjoyed by Internet users.
- The distinctions between the protections afforded electronic communications as opposed to voice communications should be resolved in favor of privacy. The report raises concerns about the Electronic Communications Privacy Act (ECPA) because it treats "wire and electronic communications inconsistently." The report advocates a "least common denominator" approach to these inconsistencies. Whatever protects privacy least would become the rule for both types of communications. Specifically, the report suggests that phone calls and Internet communications, as well as "[e]-mail, voice mail, user access logs, and remotely stored files" should be treated with an equally low level of privacy protection to resolve "deficiencies in the rules for government access to customer records, especially with respect to access by civil and regulatory agencies."
When ECPA was enacted, it was well known that the statute treated wire and electronic communications differently. Furthermore, we should note that ECPA's standards for voice communications do a number of things: (I) incorporate a Constitutionally mandated standard that the government show probable cause before it can conduct a search, (II) allow for wiretapping only for more serious crimes; (III) apply a statutory exclusionary rule for illegally intercepted conversations and (IV) require approval by high-ranking Justice Department officials. With the exception of probable cause, these privacy protections do not cover interception of the content of electronic communications; the report seems to suggest that they be done away with for voice communications as well. Furthermore, the report seems to ignore real-life differences between wire and electronic communications, as well as voice and non-voice data. It is important that any proposed standard should continue to take these distinctions into consideration, while continuing to follow Constitutional probable cause requirements.
- The standards for issuing pen register orders, as well as for issuing trap and trace device orders, should be raised. Currently, law enforcement agents need only overcome minimal obstacles to obtain pen register orders, as well as authorization to use trap and trace devices. However, the report criticizes these standards, claiming that "advances in telecommunications technology have made the language of the statute obsolete." We are troubled by the possibility that attempts to "update" current statutes will, in fact, expand the government's power to surreptitiously intercept even more personal electronic communications under the minimal standards for pen registers and trap and trace devices. Currently, all law enforcement must do to secure a trap and trace or pen register order from a federal judge is assert in writing that information relevant to an ongoing investigation is likely to be obtained. The judge to whom the application is made mustapprove the application, even if he disagrees with the assertions of law enforcement.
- Similarly, we are concerned by the report's suggestions that the government should have greater powers in using trap and trace devices. In making this recommendation, the report provides few specifics as to what sort of information the government would then be able to collect. An expansion of these powers might allow law enforcement agents to access a variety of data, including dialup numbers, Internet Protocol (IP) addresses, electronic mail logs, uploaded files, and so on. Indeed, the vagaries of this plan might allow the identification and tracking of virtually anyone who uses the World Wide Web, without a court order. Proper measures must be taken to avoid opening this digital Pandora's Box.
- The report finds fault with current laws that protect First-Amendment-protected activities. The document raises particular concerns about statutes such as the Privacy Protection Act of 1980, which safeguards information that has been gathered and produced by reporters (including their work-product materials). This was enacted in recognition of the fact that "the free flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated." In particular, the report seems to suggest that the Act's protections should be retained for innocent third parties, but should be withdrawn for people who create "drafts" of what they will ultimately use to commit a crime. In addition, the report seems to suggest that these laws should be altered, perhaps allowing government access to virtually all computers, because "almost any computer can be used to 'publish' material." This might violate numerous legal precedents, including several Supreme Court decisions which, among other things, (I) recognize the power of Congress to enact laws to prevent the unnecessary disclosure of such information and (II) protect reporters in a variety of special circumstances, such as when subpoena powers have been abused. (See Branzburg v. Hayes, 408 U.S. 665, 706 (1972); University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 201 & n.8 (1990)). Indeed, the High Court has stated that when "the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with 'scrupulous exactitude'", meaning the government must show probable cause and get a warrant. (See Zurcher v. The Stanford Daily, 436 U.S. 547, 564 (1978), citing Stanford v. Texas, 379 U.S. 476, 485 (1965).) Congress went a step further toward protecting this aspect of free speech when it enacted the Privacy Protection Act. To diminish these protections would be a terrible blow to the First Amendment.
- The report contains virtually no statistics on the extent of computer-related crime, or whether such activity poses a truly significant threat to our nation. Instead, the report merely mentions several anecdotes on how a few individuals have used the computers to commit crimes. Such statistics should be disclosed before any statutory changes are even considered.
- The report provides few specifics as to how current systems could be better protected through the use of various promising technologies (including encryption). This comes despite the fact that the report contains a myriad of finely-detailed suggestions about current privacy-protection laws, and how they should be changed to satisfy the asserted needs of law enforcement. The government should give proper regard to these new privacy-enhancing technologies to protect everyone from possible cybercrimes.
We would appreciate a response to this letter as soon as possible. Thank you very much.
Sincerely,
Barry Steinhardt
Associate Director
Laura W. Murphy
Director, Washington National Office
Gregory T. Nojeim
Legislative Counsel
