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Category: Privacy (Law Enforcement)

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Teaching Information Privacy Law

privacy1a.jpgThis post was originally posted on PrawfsBlawg on May 10, 2005. I have made a few small edits to this post.

For the law professor readers of this blog, especially newer professors (or professors-to-be) who are still figuring out the courses they want to teach, I thought I’d recommend information privacy law as a course you might consider teaching. (I have a casebook in the field, so this is really a thinly-disguised self-plug.)

Information privacy law remains a fairly young field, and it has yet to take hold as a course taught consistently in most law schools. I’m hoping to change all that. So if you’re interested in exploring issues involving information technology, criminal procedure, or free speech, here are a few reasons why you should consider adding information privacy law to your course mix:

1. It’s new and fresh. Lots of media attention on privacy law issues these days. Students are very interested in the topic.

2. Lively cases and fascinating issues abound. There’s barely a dull moment in the course. Every topic is interesting; there is no rule against perpetuities to cover!

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FBI Intelligence Violations

fbi2a.jpgThe Washington Post is reporting on documents obtained by Marcia Hofmann at the Electronic Privacy Information Center that demonstrate a number of FBI intelligence surveillance violations:

The FBI has conducted clandestine surveillance on some U.S. residents for as long as 18 months at a time without proper paperwork or oversight, according to previously classified documents to be released today.

Records turned over as part of a Freedom of Information Act lawsuit also indicate that the FBI has investigated hundreds of potential violations related to its use of secret surveillance operations, which have been stepped up dramatically since the Sept. 11, 2001, attacks but are largely hidden from public view.

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Making Universities Pay for Government Surveillance

computer-surveillance.jpg.gifIn 1994, Congress passed a law called the Communications Assistance for Law Enforcement Act (CALEA), which requires telecommunication providers to build wiretapping and surveillance capabilities for law enforcement officials into their new technologies.

A recent rulemaking by the Federal Communications Commission (FCC) significanty expands the reach of CALEA beyond telephone companies and ISPs:

The federal government, vastly extending the reach of an 11-year-old law, is requiring hundreds of universities, online communications companies and cities to overhaul their Internet computer networks to make it easier for law enforcement authorities to monitor e-mail and other online communications.

The action, which the government says is intended to help catch terrorists and other criminals, has unleashed protests and the threat of lawsuits from universities, which argue that it will cost them at least $7 billion while doing little to apprehend lawbreakers. . . .

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Italy’s Surveillance of Cyber Cafes

italy3.jpgThis interesting story describes Italy’s strong antiterrorism laws, which require extensive monitoring of people’s use of the Internet in cyber cafes:

After Italy passed a new antiterrorism package in July, authorities ordered managers offering public communications services, like Mr. Savoni, to make passport photocopies of every customer seeking to use the Internet, phone, or fax. . . .

Passed within weeks of the London bombings this summer, the law is part of the most extensive antiterror package introduced in Italy since 9/11 and the country’s subsequent support of the Iraq war.

Though the legislation also includes measures to heighten transportation security, permit DNA collection, and facilitate the detention or deportation of suspects, average Italians are feeling its effect mainly in Internet cafes.

Before the law was passed, Savoni’s clients were anonymous to him. Now they must be identified by first and last name. He must also document which computer they use, as well as their log-in and log-out times.

Like other owners of Internet cafes, Savoni had to obtain a new public communications business license, and purchase tracking software that costs up to $1,600.

The software saves a list of all sites visited by clients, and Internet cafe operators must periodically turn this list into their local police headquarters.

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Should We All Be in the National DNA Database?

dna4.jpgThe Senate recently voted to reauthorize the Violence Against Women Act. But nestled in the Act was an amendment by Senator Jon Kyl (R-Arizona) to add arrestee information to the national DNA database. The national DNA database, which is run by the FBI, is called the Combined DNA Index System (“CODIS”), and it includes DNA from over two million convicted criminals. This DNA is used to identify matches with DNA found at crime scenes.

In a press release, Senator Leahy (D-Vermont) states:

Regrettably, this important bill was saddled in Committee with an extraneous and ill-considered amendment, offered by Senator Kyl, relating to the national DNA database. Current law permits States to collect DNA samples from arrested individuals and to include arrestee information in State DNA databases. In addition, States may use arrestee information to search the national DNA database for a possible “hit.” The only thing that States may not do is upload arrestee information into the national database before a person has been formally charged with a crime.

Under the Kyl amendment, arrestee information can go into the national database immediately upon arrest, before formal charges are filed, and even if no charges are ever brought. This adds little or no value for law enforcement, while intruding on the privacy rights of people who are, in our system, presumed innocent. It could also provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. Congress rejected this very proposal less than a year ago, after extended negotiations and consultation with the Department of Justice.

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Do We Really Want Perfect Law Enforcement?

speeding3.jpgI just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?

Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?

Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.

In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]

So why was there such a public outcry against the program?

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Snooping Landlords and the War on Terrorism

home-snoop2.jpgIn this interesting AP article, a man won an invasion of privacy lawsuit when his property manager searched his home and reported to the FBI that there were terrorist materials in the apartment. FBI officials detained, fingerprinted, and handcuffed the man, but eventually determined that the man wasn’t a terrorist:

A federal jury awarded an Egyptian-born radiologist nearly $2.5 million for invasion of privacy after a property manager searched his apartment and called police on Sept. 11, 2001.

After four days of deliberations, the jury issued the award Thursday to Basem M.F. Hussein, saying the invasion of his privacy was made with “malice of reckless indifference” to his rights.

Sherri Lynn Wilson had entered Hussein’s apartment in Coraopolis the day of the attacks to replace furnace filters, according to testimony. She told the FBI she saw Arabic literature, an airplane flight manual, a compact disc jacket that showed an exploding airplane, and chemical residue she believed to be from bomb-making activities.

What she actually saw was a popular flight simulator computer game and its CD jacket, which did not depict an exploding airplane, Hussein’s attorney said. The purported Arabic literature was an English version of the Koran; the chemical residue was household dust.

Hussein was awarded $850,000 in compensatory damages and $1.6 million in punitive damages.

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The USA-PATRIOT Act: A Fraction of the Problem

usa-patriot1.jpgOver at Legal Affairs Debate Club, Geoffrey Stone and Judge Richard Posner are debating the USA-PATRIOT Act. The focus of the debate thus far is on Section 215 of the USA PATRIOT Act, which states:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Further, this section requires that the person ordered to turn over the materials shall not “disclose to any other person . . . that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Stone calls for curtailing Section 215 and Posner comes out in favor of a modified version of it.

The problem with this debate, as with many debates over the USA-PATRIOT Act, is that it is focused only on the USA-PATRIOT Act. Many of the issues that people are debating about already existed in federal electronic surveillance law before the USA-PATRIOT Act.

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