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.

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