“Privacy & Security After September 11”

Professor Peter P. Swire

Ohio State University

University of Michigan Lecture

December 4, 2001

Overview of the Talk

My background and Clinton Administration on privacy and security

Wiretaps and surveillance, before and after September 11

Lessons going forward Tonight’s talk -- bring out privacy and the

logic of why greater security tools may be needed

I. My Background

1980 thesis on IT and effects on legal and economic thought

First Internet law article in 1992 Wrote on encryption, privacy, and other cyber

issues 1999 & 2000 -- Clinton Administration

– Chief Counselor for Privacy 2001 Return to law teaching

Why the interest in privacy?

First wave of privacy activity– 1970, Fair Credit Reporting Act– 1974, Privacy Act (federal agencies)– Rise of the mainframes– Possibility of giant databases– Develop fair information practices of notice,

choice, access, security, and accountability

Second wave of privacy activity

Modern laptop or desktop -- everyone can have a mainframe

Rise of the Internet Transfers are free, instant, and global How do we respond to more databases and

more transfers? High interest in privacy, and the WSJ poll

9/99

Clinton Administration -- Privacy Legal protections for sensitive data

– Medical privacy proposed and final rule– Financial privacy law and rules– Children’s Online Privacy Protection Act

Self-regulation as path to progress– Internet privacy policies, rise from 14% to 88%

Government as a model– Website privacy policies– Cookies on website policy

ClintonAdministration -- Security

Better computer security helps privacy, by keeping out unauthorized users

But, better computer security can threaten privacy, where have increased surveillance– Federal Intrusion Detection Network (FIDNET)– Carnivore e-mail surveillance program

Clinton Administration - Encryption Security concern: FBI and NSA say strong

encryption hurts security and lets criminals communicate freely

9/99 policy change: strong encryption necessary for strong military, e-commerce, and civil society

Helps privacy and security, because otherwise everyone’s communications are easily compromised

II. Wiretaps and Surveillance

History of wiretaps 2000 Administration proposal 2001 Bush/Ashcroft proposal and the USA

Patriot Act

Wiretap History

1920s Olmstead– Wiretaps permitted by police without warrant where

tap applied outside your home 1960s Katz

– Reasonable expectation of privacy, even in a phone booth

1968 Title III– Strict rules for content, more than probable cause, as

a last resort, reporting requirements

History (cont.)

1970s Church Committee and FISA– Keep CIA out of domestic spying– Secret wiretaps in U.S., but only where primarily

for foreign intelligence 1984 ECPA

– Some protections for e-mail– Some protections for to/from information; pen

registers (who you call); trap and trace (who calls you)

2000 Administration Proposal

How to update wiretap and surveillance for the Internet age

Headed 15-agency White House working group

Legislation proposed June, 2000– S. 3083– Hearings and mark-up in House Judiciary,

further toward privacy than our proposal

2000 Administration Proposal

Update telephone era language Upgrade email and web protections to same

as telephone calls Identify new obstacles to law enforcement

from the new technology Sense of responsibility -- assure privacy,

give law enforcement tools it needs

2001 USA Patriot Act

Introduced less than a week after September 11

Describe new provisions Computer trespasser exception Walls down between CIA/FBI 4 year “sunset” for many surveillance

provisions and what to do next

Updating telephone-era language

– Was “device” authorized by court order– That worked well for a physical tap on a copper

wire, but does it allow a sniffer program on web usage?

– Now “device or process”, so software access is clearly authorized

Roving taps

– Old days, order for each phone– What if suspect buys a dozen disposable cell

phones?– But, how far can the order rove? Anyone in the

public library?– Problem -- less of a suppression remedy for

email and web use

Emergency orders

– Any ongoing computer attack, or else ability to trace back may be lost

– Anything affecting “a national security interest”– Are these too broad?

Nationwide trap and trace

– Old days, serve order on ATT and it was effective nationwide

– Today, e-mail may travel through a half-dozen providers, have needed that many court orders

– New law -- one order effective nationwide– Query -- order from a judge in Idaho, served

late at night, how do you challenge that?

Updating scope of data Previously, pen/trap orders (to/from information)

authorized to get “telephone numbers” New law, any “dialing, routing, addressing, or

signaling” information Amendment -- “not including content”, but that

was left undefined Legally allows urls? Technically, can content be

excluded?

Computer trespasser exception

Previous law:– ISP can monitor its own system– ISP can give evidence of yesterday’s attack– ISP cannot invite law enforcement in to catch

the burglars Problem for:

– DOD and many hack attacks– Small system owners who need help

Computer trespasser proposal

Law enforcement can “surf behind” if:– Targets person who accesses a computer “without

authorization”– System owner consents– Lawful investigation– Law enforcement reasonably believes that the

information will be relevant– Interception does not acquire communications other

than those transmitted to or from the trespasser

Computer trespasser

Issues of concern:– Never a hearing in Congress on it– No time limit– No reporting requirement– FBI can ask the ISP to invite it in, and then

camp at ISP permanently– Limited suppression remedy if go outside

permitted scope

Law Enforcement vs. Foreign Intelligence From the 1970s -- separate law enforcement

(domestic, rule of law) from foreign intelligence (foreign, laws of war)

Lawyers in DOJ policed transfers, pretty strict

FBI official this fall: “all the walls are down now”

Supporting this change

Terrorism is both domestic and foreign– World Trade Center shows a risk from keeping

investigatory databases separate– As a legislator, would you want to insist on the

separation and risk another catastrophe? The Internet

– E-mail and other communications are routinely across borders

– Intelligence gathering should be shared

“All the walls are down now”

To law enforcement, get information from secret FISA wiretaps:– Rule was if “primary purpose” was foreign

intelligence– Rule now if “significant purpose”

To foreign intelligence, secret grand jury testimony can now go to CIA, etc., with no re-use limits in the law

Concerns with FBI/CIA changes History from 1960s and 1970s of abuses Risks insertion of foreign intelligence in

domestic political groups Already new proposals to have FBI surveil

domestic groups Possibility of large increase in secret wiretaps Possibility of prosecutors using broad grand

jury powers for non-criminal matters

Concluding Thoughts

After 9/11, greater focus on (cyber) security Security vs. privacy Security and privacy Our homework

Greater Focus on Security

Less tolerance for hackers and other unauthorized use

Cyber-security and the need to protect critical infrastructures such as payments system, electricity grid, & telephone system

Greater tolerance for surveillance, which many people believe is justified by greater risks

Security vs. Privacy

Security sometimes means greater surveillance, information gathering, & information sharing

USA Patriot increases in surveillance powers

Computer trespasser exception Moral suasion to report possible terrorists

Security and Privacy

Good data handling practices become more important -- good security protects information against unauthorized use

Audit trails, accounting become more obviously desirable -- helps fight sloppy privacy practices

Part of system upgrade for security will be system upgrade for other requirements, such as privacy

Our Homework

USA Patriot has 4 year sunset on many of the surveillance provisions

An invitation to get engaged, to study the pros and cons of the new provisions

Hearings are needed on computer trespasser, foreign/domestic, etc.

What can be the new forms of accountability? How stop potential abuses?

In Conclusion

USA Patriot Act is a work in progress Imagine an architecture that meets legitimate

security needs and also respects privacy Better data handling often results in both But need accountability to ensure that the

new powers are used wisely Let’s get to work on that.

Contact Information

Professor Peter P. Swire phone: (301) 213-9587 email: pswire@law.gwu.edu web: www.osu.edu/units/law/swire.htm