Too Little, Too Late: ACLU Disappointed by Administration Speech on Electronic Privacy

WASHINGTON — This morning’s speech on electronic privacy by White House Chief of Staff John Podesta was deeply disappointing. The Administration missed an important opportunity to issue an executive order that would have immediately restrained Federal law enforcement. Instead, it only offered legislative proposals that are highly unlikely to be adopted this year.

In his speech at the National Press Club, Podesta also failed to seriously address the FBI’s use of the Carnivore system that requires Internet service providers to attach a black box to their networks through which all their subscribers’ communications traffic flows. As the ACLU has said repeatedly in recent days, Carnivore represents a grave threat to the privacy of all Americans by giving law enforcement agencies unsupervised access to a nearly unlimited amount of communications traffic.

In light of the public and Congressional criticism of Carnivore, we had hoped and expected far more from an Administration that likes to tout its sensitivity to privacy rights. Rather than glossing over Carnivore, Podesta should have announced that the Administration was suspending its use.

The Administration did make two potentially promising proposals for action by the Congress. First, it announced that it would support legislation to require that the same standards that apply to the real-time interception of the content of telephone calls – so-called “Title III Standards – should also apply to the real time interception of electronic mail. This proposal would be more significant if the standards applied to all e-mail messages, including those stored by service providers.

The Administration also proposed that judges be given greater authority to review requests for pen registers and trap devices. Under current law, the judiciary must simply rubber-stamp such requests. This is a potentially significant change, although it will only be meaningful if judges are allowed to make independent decisions about whether the target of the order is involved in criminal activity.

While the Clinton administration’s proposals have some heartening qualities to them, they are too little and too late. Congress has only a few weeks left before it recesses for the election and it is highly unlikely to act before President Clinton leaves office in January 2001.

Even though it has tried to persuade the American public that it cares about cyber-privacy, the Clinton Administration consistently declines to back its rhetoric with action. Last-minute legislative proposals cannot satisfy the deep privacy concerns of the American public. The Administration missed an important opportunity this morning and the privacy of all Americans will suffer as a result.