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[FYI] (Fwd) FC: ACLU blasts White House report on unlawful conduct o

------- Forwarded message follows -------
Date sent:      	Wed, 08 Mar 2000 18:46:06 -0500
To:             	politech@vorlon.mit.edu
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: ACLU blasts White House report on unlawful conduct online
Send reply to:  	declan@well.com

[This is a press release from this afternoon]


In a letter sent today to Attorney General Janet Reno, the ACLU
sharply criticized a draft White House report on "Unlawful Conduct
Involving the Use of the Internet."

A draft version of the report, now online at
is expected to be made public tomorrow at Reno's weekly 9:30 a.m.
briefing. The final version is not expected to differ appreciably from
the current draft.

The ACLU letter follows.  To speak with any of the signatories,

In New York:
Emily Whitfield, Media Relations Director, ACLU National
(212) 549-2566 or 2666/cell phone (917) 686-4542/ewhitfield@aclu.org

In Washington:
Jennifer Helburn, ACLU Communications Unit
(202) 675-2312

March 8, 2000

Janet Reno, Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington DC 20530-0001

Dear Attorney General Reno:

The report entitled "The Electronic Frontier: the Challenge of
Unlawful Conduct Involving the Use of the Internet" (by the
President's Working Group on Unlawful Conduct On the Internet) raises
a number of civil liberties concerns. We urge you to reject a number
of the report's recommendations and to clarify others.

* Anonymity on the Internet is not a thorny issue; it is a
Constitutional right. The United States Supreme Court held that the
Constitution grants citizens the right to speak anonymously. (See
McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).) However,
the report treats the anonymity of Internet users as a "thorny issue,"
rather than a constitutional right. Indeed, the report suggests that
the identity of individuals along the "Information Superhighway"
should be stripped away to deal with purported problems with the Cable
Communications Policy Act of 1984 and various telephone harassment
statutes. An end to Internet anonymity would chill free expression in
cyberspace and strip away one of the key structural privacy
protections enjoyed by Internet users.

* The distinctions between the protections afforded electronic
communications as opposed to voice communications should be resolved
in favor of privacy. The report raises concerns about the Electronic
Communications Privacy Act (ECPA) because it treats "wire and
electronic communications inconsistently." The report advocates a
"least common denominator" approach to these inconsistencies. Whatever
protects privacy least would become the rule for both types of
communications. Specifically, the report suggests that phone calls and
Internet communications, as well as "[e]-mail, voice mail, user access
logs, and remotely stored files" should be treated with an equally low
level of privacy protection to resolve "deficiencies in the rules for
government access to customer records, especially with respect to
access by civil and regulatory agencies."

When ECPA was enacted, it was well known that the statute treated wire
and electronic communications differently. Furthermore, we should note
that ECPA's standards for voice communications do a number of things:
(I) incorporate a Constitutionally mandated standard that the
government show probable cause before it can conduct a search, (II)
allow for wiretapping only for more serious crimes; (III) apply a
statutory exclusionary rule for illegally intercepted conversations
and (IV) require approval by high-ranking Justice Department
officials. With the exception of probable cause, these privacy
protections do not cover interception of the content of electronic
communications; the report seems to suggest that they be done away
with for voice communications as well. Furthermore, the report seems
to ignore real-life differences between wire and electronic
communications, as well as voice and non-voice data. It is important
that any proposed standard should continue to take these distinctions
into consideration, while continuing to follow Constitutional probable
cause requirements.

* The standards for issuing pen register orders, as well as for
issuing trap and trace device orders, should be raised. Currently, law
enforcement agents need only overcome minimal obstacles to obtain pen
register orders, as well as authorization to use trap and trace
devices. However, the report criticizes these standards, claiming that
"advances in telecommunications technology have made the language of
the statute obsolete." We are troubled by the possibility that
attempts to "update" current statutes will, in fact, expand the
government's power to surreptitiously intercept even more personal
electronic communications under the minimal standards for pen
registers and trap and trace devices. Currently, all law enforcement
must do to secure a trap and trace or pen register order from a
federal judge is assert in writing that information relevant to an
ongoing investigation is likely to be obtained. The judge to whom the
application is made must approve the application, even if he disagrees
with the assertions of law enforcement.

* Similarly, we are concerned by the report's suggestions that the
government should have greater powers in using trap and trace devices.
In making this recommendation, the report provides few specifics as to
what sort of information the government would then be able to collect.
An expansion of these powers might allow law enforcement agents to
access a variety of data, including dialup numbers, Internet Protocol
(IP) addresses, electronic mail logs, uploaded files, and so on.
Indeed, the vagaries of this plan might allow the identification and
tracking of virtually anyone who uses the World Wide Web, without a
court order. Proper measures must be taken to avoid opening this
digital Pandora's Box.

* The report finds fault with current laws that protect
First-Amendment-protected activities. The document raises particular
concerns about statutes such as the Privacy Protection Act of 1980,
which safeguards information that has been gathered and produced by
reporters (including their work-product materials). This was enacted
in recognition of the fact that "the free flow of information to the
public protected by the free-press guarantee would be severely
curtailed if no protection whatever were afforded to the process by
which news is assembled and disseminated."  In particular, the report
seems to suggest that the Act's protections should be retained for
innocent third parties, but should be withdrawn for people who create
"drafts" of what they will ultimately use to commit a crime. In
addition, the report seems to suggest that these laws should be
altered, perhaps allowing government access to virtually all
computers, because "almost any computer can be used to 'publish'
material." This might violate numerous legal precedents, including
several Supreme Court decisions which, among other things, (I)
recognize the power of Congress to enact laws to prevent the
unnecessary disclosure of such information and (II) protect reporters
in a variety of special circumstances, such as when subpoena powers
have been abused. (See Branzburg v. Hayes, 408 U.S. 665, 706 (1972);
University of Pennsylvania v. Equal Employment Opportunity Commission,
493 U.S. 182, 201 & n.8 (1990)). Indeed, the High Court has stated
that when "the materials sought to be seized may be protected by the
First Amendment, the requirements of the Fourth Amendment must be
applied with 'scrupulous exactitude'", meaning the government must
show probable cause and get a warrant. (See Zurcher v. The Stanford
Daily, 436 U.S. 547, 564 (1978), citing Stanford v. Texas, 379 U.S.
476, 485 (1965).) Congress went a step further toward protecting this
aspect of free speech when it enacted the Privacy Protection Act.  To
diminish these protections would be a terrible blow to the First

* The report contains virtually no statistics on the extent of
computer-related crime, or whether such activity poses a truly
significant threat to our nation. Instead, the report merely mentions
several anecdotes on how a few individuals have used the computers to
commit crimes. Such statistics should be disclosed before any
statutory changes are even considered.

* The report provides few specifics as to how current systems could be
better protected through the use of various promising technologies
(including encryption). This comes despite the fact that the report
contains a myriad of finely-detailed suggestions about current
privacy-protection laws, and how they should be changed to satisfy the
asserted needs of law enforcement. The government should give proper
regard to these new privacy-enhancing technologies to protect everyone
from possible cybercrimes.

We would appreciate a response to this letter as soon as possible.
Thank you very much.


Barry Steinhardt
Associate Director

Laura W. Murphy
Director, Washington National Office

Gregory T. Nojeim
Legislative Counsel

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