Your right to digital privacy returns to center-stage

Bush-era wiretapping controversy instigates movement for stronger privacy protections

Opposition to the federal government’s digital snooping policies is gaining momentum. A federal judge, prominent Democratic senator, and coalition of industry giants and civil rights groups are all taking shots at the Obama administration.

Their concerns relate to the government’s ability to access personal digital information on private persons in the interest of national security. One sticking point is the warrantless wiretapping program that the Bush administration started.

When he was a presidential candidate, Barack Obama said it was unconstitutional and illegal for the Bush administration to conduct warrantless surveillance of Americans, reported James Risen and Charlie Savage in the New York Times.

But the Obama administration has avoided asserting that position thus far by asking courts to dismiss lawsuits over the wiretapping program on the grounds that the litigation could reveal national security secrets.

However, a ruling earlier this month by a federal judge that one instance of such spying had been unlawful electronic surveillance could force the administration to take a position, according to the Times.

Sen. Patrick Leahy (D-Vt.) apparently wants to force the issue. In a statement earlier this month, Leahy said he planned to hold hearings in the upcoming months to discuss much-needed updates to the Electronic Communications Privacy Act of 1986, which provides the legal framework for government surveillance of digital information.

Leahy's statement came in response to the emergence of the Digital Due Process Coalition, which includes business rivals such as Google and Microsoft and a spectrum-spanning range of advocacy groups, from the American Civil Liberties Union to the Progress and Freedom Foundation.

The coalition's members are concerned that under current law, the government only needs a simple subpoena to access personal electronic records, whether they are e-mail messages and photos people store via third-party services, such as Gmail or Facebook, or the location-tracking data captured by service providers when people use their mobile phones.

The coalition is urging legal changes that would require the government to obtain a search warrant based on probable cause, not an investigator’s hunch, to seize such information.

The Electronic Communications Privacy Act “is notoriously convoluted and difficult even for judges to follow,” writes Declan McCullagh on Cnet. That law generally gives people more privacy rights when they store data on computers in their homes, but those protections might not be available when the same data is stored on the computers of cloud service providers, such as Google.

"It's absurd that in 2010, we're publicly unclear about what level of protection our e-mails are entitled to," said Julian Sanchez of the Cato Institute, in the Cnet report. The institute is sympathetic to the coalition's efforts but has not joined the group.

Government has more of an interest in this issue than simply law enforcement or national security, as important as those issues are. Agencies across the government, like companies and individual citizens, stand to benefit from new communications and cloud-based services, and the proposed reforms would empower cloud computing and mobile service providers to offer more robust privacy assurances to users, write Ryan Radia and Berin Szoka on the Web site of the Competitive Enterprise Institute, a coalition supporter.

“Such assurances will help strengthen user trust in cloud computing and, consequently, may spur innovation in cloud computing services that involve highly sensitive data like health information,” they write.

About the Author

John Zyskowski is a senior editor of Federal Computer Week. Follow him on Twitter: @ZyskowskiWriter.

The Fed 100

Save the date for 28th annual Federal 100 Awards Gala.


  • computer network

    How Einstein changes the way government does business

    The Department of Commerce is revising its confidentiality agreement for statistical data survey respondents to reflect the fact that the Department of Homeland Security could see some of that data if it is captured by the Einstein system.

  • Defense Secretary Jim Mattis. Army photo by Monica King. Jan. 26, 2017.

    Mattis mulls consolidation in IT, cyber

    In a Feb. 17 memo, Defense Secretary Jim Mattis told senior leadership to establish teams to look for duplication across the armed services in business operations, including in IT and cybersecurity.

  • Image from

    DHS vague on rules for election aid, say states

    State election officials had more questions than answers after a Department of Homeland Security presentation on the designation of election systems as critical U.S. infrastructure.

  • Org Chart Stock Art - Shutterstock

    How the hiring freeze targets millennials

    The government desperately needs younger talent to replace an aging workforce, and experts say that a freeze on hiring doesn't help.

  • Shutterstock image: healthcare digital interface.

    VA moves ahead with homegrown scheduling IT

    The Department of Veterans Affairs will test an internally developed scheduling module at primary care sites nationwide to see if it's ready to service the entire agency.

  • Shutterstock images (honglouwawa & 0beron): Bitcoin image overlay replaced with a dollar sign on a hardware circuit.

    MGT Act poised for a comeback

    After missing in the last Congress, drafters of a bill to encourage cloud adoption are looking for a new plan.

Reader comments

Please post your comments here. Comments are moderated, so they may not appear immediately after submitting. We will not post comments that we consider abusive or off-topic.

Please type the letters/numbers you see above

More from 1105 Public Sector Media Group