Terror War Has Taken a Big Bite Out of Privacy, Report Says

Terror War Has Taken a Big Bite Out of Privacy, Report Says

Dave Eberhart, NewsMax.com
Friday, Sept. 6, 2002

There has been a rapid erosion of the right to privacy since the September 11 attacks in the United States, a top international privacy advocate group charges, and although Britain gets the most criticism for privacy violations, the U.S. comes in for some harsh censure.

According to the fifth annual Privacy and Human Rights survey prepared and published by the Electronic Privacy Information Center (EPIC) and Privacy International, a report that reviews the state of privacy in over 50 countries around the world, privacy rights are under assault here and abroad.

Although the United Kingdom ranked as the worst violator of privacy rights, the U.S. also takes a beating, including a conclusion that the FBI’s aggressive and controversial "Carnivore” system to eavesdrop on a computer’s e-mail and browsing history may have hindered rather than aided the government’s anti-terrorism investigation.

"It’s actually pretty shocking if you look at the timeline that’s involved here,” said Sarah Andrews EPIC’s research director and the author of the report. "Getting legislation through a government is not an easy thing to do, and most of this happened before the end of 2001. The policy changes were not limited to the United States, as a large number of countries responded to the threat of terrorism.”

The 400-page report includes a dozen pages devoted to assessing the state of privacy in the U.S. Some of the report’s conclusions:

In July 2000, it was revealed that the FBI had developed a system called "Carnivore” that is placed at an Internet Service Provider’s offices and can monitor all of a user’s internet traffic including e-mail and browsing. In May 2002, EPIC obtained FOIA [Freedom of Information] documents on Carnivore that indicated that the program may have hindered the government’s anti-terrorism investigation by over-collecting data in violation of wiretapping laws.

[After the Carnivore system was discovered, Attorney General Reno promised to conduct a review of its privacy protections. In the fall of 2000, the Justice Department commissioned a team of experts to undertake an independent review of Carnivore. The group issued its final report on Carnivore in December 2000 and made several recommendations for changes to the system. These recommendations have not yet been implemented by the Justice Department and the system remains in use today.]

The USA Patriot Act, which passed in the wake of the September 11, 2001 attacks, significantly weakened privacy protections in federal wiretapping statutes.

[The Act extended the "pen register” portions of federal wiretapping law, allowing Carnivore to be used to collect traffic data based on a mere certification of a prosecutor that it would collect information relevant to an ongoing investigation. The Patriot Act also authorizes national application of a wiretap order - a court in one jurisdiction can issue a warrant that could apply anywhere in the country. Courts can issue roving wiretaps, giving law enforcement the ability to monitor many different devices that a suspect may use. Although supporters of the Act claim that a sunset provision in the bill would limit police power, in fact only some of the new surveillance authority will expire.]

The use of electronic surveillance has more than tripled in the last ten years. In 2001, a total of 1,491 federal and state wiretaps were authorized. No wiretap applications were denied during the year. The vast majority of the wiretaps, 78 percent, were authorized for narcotics investigations. Sixty-eight percent of wiretaps were directed at portable devices such as cellular phones and pagers. Law enforcement encountered encryption in 16 of the wiretaps, however, police were able to access the plain text of the communications in all cases.

Department of Health and Human Services regulations protecting medical privacy went into effect in April 2001. The large number of exemptions provided limits the protection offered by the new rules.

[For example, patients’ information can be used for marketing and fundraising purposes. Doctors, hospitals, and health services companies will be able to send targeted health information and product promotions to individual patients and there is no opt-out right to limit this marketing use of medical data.]

The Privacy Act of 1974 protects records held by United States Government agencies and requires agencies to apply basic fair information practices. However, its effectiveness is significantly weakened by administrative interpretations of a provision allowing for disclosure of personal information for a "routine use” compatible with the purpose for which the information was originally collected.

Limits on the use of Social Security numbers have also been undercut in recent years because Congress has approved new purposes for the identifier and because the private sector employs the identifier for many purposes – with virtually no safeguards for the individual.

There is no independent privacy oversight agency in the United States. The Office of Management and Budget plays a limited role in setting policy for federal agencies under the Privacy Act, but it has not been particularly active or effective.

[In 1999 a Chief Counselor for Privacy was appointed within the Office of Management and Budget to coordinate federal stances towards privacy. The Counselor had only a limited advisory capacity. The new Bush administration has eliminated this position.]

Internet privacy has remained the hottest issue of the past few years. A number of profitable companies, including eBay.com, Amazon.com, drkoop.com, and yahoo.com have either changed users’ privacy settings or have changed privacy policies to the detriment of users. A series of companies, including Intel and Microsoft, were discovered to have released products that secretly track the activities of Internet users.

Virginia Beach, Virginia, received funding in 2001 from the Virginia Department of Criminal Justice Services to install a system that can scan and process the facial images of tourists visiting the town. Face recognition technology is still not reliable and remains unregulated by United States laws.

[Studies sponsored by the Defense Department have also shown the system is right only 54 percent of the time and can be significantly compromised by changes in lighting, weight, hair, sunglasses, subject cooperation, and other factors. Tests on the face recognition systems in operation at Palm Beach Airport in Florida, and Logan International Airport in Boston have also shown the technology to be ineffective and error-ridden.]

The Federal Trade Commission has oversight and enforcement powers for the laws protecting children’s online privacy, consumer credit information and fair trading practices but has no general authority to enforce privacy rights. The FTC has received thousands of complaints but has issued opinions in only a few cases.

The United States has no comprehensive privacy protection law for the private sector. A patchwork of federal laws covers some specific categories of personal information. These include financial records, educational records, motor vehicle registrations, and telemarketing.

Privacy International is a human rights group formed in 1990 as a watchdog on surveillance by governments and corporations. PI is based in London, and has an office in Washington, D.C. Together with members in 40 countries, PI has conducted campaigns throughout the world on issues ranging from wiretapping and national security activities, to ID cards, video surveillance, data matching, police information systems, and medical privacy.

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