The only thing we have to fear is fear itself.

1. The only thing we have to fear is fear itself.

2. Courage, Dignity and Intellectual Flexibility

3. Signing of the USA-PATRIOT Act of 2001

4. 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, victim’s rights, etc. • Amends educational records, secret courts and electronic communications laws

5. 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

6. …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

7. 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”

8. So What’s 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.html

9. So What’s the Problem? • Required • Shouldn’t non-content be available to law enforcement for less than 4th Amendment standard? • That’s the law, but is the law mapped with the technology? • IP addresses + browser = web site/content? • Subject lines content?

10. 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!

11. 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?

12. 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

13. Privacy and ITs Discontents

14. 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.

15. 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

16. 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

17. Constitutional Law:Personal 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

18. 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

19. 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.

20. 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, driver’s license, car registration, address, etc. • Data mining, marts and dossiers • Breaches, identity theft, notifications • Confessional, Kafkaesque society?

21. Secrecy Paradigm of Privacy • Once personally identifiable information is disclosed, it is public • You don’t 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!

22. 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?

23. History will note… Whether technology shapes society or society shapes technology depends on you.

24. 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.

25. 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.