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Federal Law and Electronic Privacy: A Huge Twisted Mess

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Current federal law on regarding electronic and digital privacy is contradictory, aribitrary, unconstituitional and in need of a drastic overhaul. The DMCA and the Patriot Act are the worst culprits:

    consumers’ cable-television records enjoy more legal protection than just about any other sort of electronic media or communications records: more than satellite-television records, more than Internet logs, more than telephone records. The Cable Communications Policy Act of 1984 said that before the government could obtain cable television records, it had to go to court to show “clear and convincing evidence” that the subject of the request was reasonably suspected of criminal activity. Moreover, the customer was entitled to a hearing to contest the disclosure.

    ….The Digital Millennium Copyright Act of 1998 says that copyright holders may issue subpoenas signed only by a court clerk – not a judge – that require Internet providers to turn over personal information about their subscribers. The law does not require the subscribers to be notified. Every major Internet provider except SBC has complied with the record industry’s requests.

    Between the stringent provisions of the cable law and the relatively wide-open provisions of the digital copyright act, a crazy quilt of laws – a product of decades of ad hoc legislation – govern what your phone company, cable company, Internet service provider or video store may be compelled to tell about you.

    ….For instance, federal law says law enforcement agencies may monitor the phone numbers a citizen is dialing, as they are being dialed, after certifying only that the information is “relevant to an ongoing criminal investigation.” Under that provision, the person under surveillance need not even be the person suspected of breaking the law. Generally the subject of that surveillance is not notified of the government’s action.

    By contrast, a separate law says that even when law enforcement agencies obtain a court order to gain access to a consumer’s video rental records, the consumer must be notified before those records are turned over.

    ….For 30 years after the passage of the 1968 wiretap act, the basic framework for privacy in communications and media remained intact even as new laws established different legal privacy frameworks for national security investigations in 1978 and for the cable television industry in 1984. The basic principles of the 1968 wiretap system were extended to electronic data communications in 1986. The furor over the disclosure of Judge Robert Bork’s video-rental history prompted a separate law for video-rental records in 1988.

    For all the inconsistencies among these various laws, one of the more significant shifts in privacy protection came in 1998 with the Digital Millennium Copyright Act.

    ….”The recording industry under this statute can get subpoenas that the Justice Department could not have,” said Jessica Litman, a law professor at Wayne State University in Detroit and the author of “Digital Copyright” (Prometheus Books, 2001). “It is highly questionable whether Congress would have so lightly done something so constitutionally questionable, which is to subject millions of Americans to subpoenas for their personal information which are not reviewed or reviewable by any court.”

    ….If the 1998 copyright law appeared to some experts to challenge elements of traditional privacy protection, the Patriot Act altered them wholesale. It superseded the stringent privacy provisions of the cable act, for example, by specifying that in many cases government agencies can use the more relaxed traditional wiretap process to get personal information.

    Robin H. Sangston, Cox Communications’ chief litigation lawyer, has seen the changes wrought by the Patriot Act firsthand… she has seen an explosion in requests for customer information from the government over the last two years.

    “The government will take the position that they can now use a subpoena under the wiretap law to get any personal subscriber information except for the video selections,” Ms. Sangston said. “We have to respond to a lot more of these requests now, with the USA Patriot Act. I mean a lot more. Obviously we do not want our customers to break the law, but we want to be able to know that the government is not using this information for a fishing expedition. But we are not able to do that because there is no review by a judge.” [NY Times]

It is time to get all of thsi straightened out.

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About Eric Olsen