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LESS PRIVACY FOR DIGITAL DATA

Posted on June 19, 2001

      Computers and the Internet have vastly extended the government's ability to collect and analyze personal information and have outpaced privacy protections in U.S. federal law, said James Dempsey, deputy director for the Center for Democracy and Technology.

      "The digital revolution has been a boon to government surveillance and collection of information," Dempsey wrote in a paper on legal protections and the Internet Age. "We need to strengthen privacy statutes to restore a balance between government surveillance and personal privacy."

      Laws written for a world of paper documents are proving inadequate for the electronic world, Dempsey wrote. For example:

• Protections in wiretapping law, including rules against using illegally obtained evidence, do not apply to e-mail or other Internet communications.
• Data stored in electronic networks does not have the same privacy protection as data stored in home or office computers or data on paper.
• Internet users are not entitled to notification when information is subpoenaed in civil suits from Internet service providers.
• Inconsistent privacy standards apply to different technologies. Privacy protections differ when watching the same movie via satellite, cable, cable modem and rental video.

      There is no explicit constitutional guarantee of privacy, but the Fourth Amendment offers some protection against government intrusion in the paper world.

      To get access to an individual's papers or effects, government agents first must obtain a warrant showing probable cause to believe that a crime has been or will be committed. They must also provide timely notice of a search and an inventory of items seized.

      But Fourth Amendment protections do not cover much of the information stored or transmitted in the electronic world. The Supreme Court has ruled, for example, that information given to a third party is not protected under the Fourth Amendment. Thus, information extracted from medical records, credit applications, leases, purchase agreements, online transactions and similar sources "are available to law enforcement for the asking," Dempsey said.

      "In an increasingly connected world, a recording of every telephone number dialed and the source of every call received can provide a very complete picture of a person's associations, habits, contacts, interests and activities," he said. Add e-mail, Web browsing, commercial and government databases and data mining, and the picture becomes a detailed dossier.

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