BALANCE SEEN NEEDED BETWEEN INFORMATION ACCESS AND PRIVACY PROTECTION
“Big government needs big information to fight terrorism,” but it should do it “in a way that balances privacy and security needs,” said Jerry Berman of Center for Democracy & Technology at Federalist Society conference in Washington last week: “We have to strike that balance, because if national security doesn’t include protection of our open society values, then Al Qaeda wins.”
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FCC Comr. Abernathy said Commission was trying to balance substantial governmental interest in protecting privacy against countervailing statutory and constitutional interests. Privacy is “a rather small universe” at FCC “because there are only 2 statutes that we enforce relating to privacy,” she said. However, she said “our statutory universe, though small, is a very interesting one because it intersects with constitutional law in some unexpected and perhaps even counterintuitive ways.”
FCC’s goal in implementing Sec. 222 of Communications Act and Communications Assistance for Law Enforcement Act (CALEA) was “to thread its way between and accommodate competing privacy concerns, some found in statute and some in the Constitution,” Abernathy said. She said “bifurcated” approach to Sec. 222 that Commission adopted in July “is narrowly tailored to the privacy interests at stake.” However, she said “there is no doubt that this approach overall is less protective of privacy than the Commission’s initial order, and that is a direct and inevitable consequence of the need to balance the First Amendment rights of the carriers against consumer privacy expectations.”
CALEA is different from Sec. 222 because “it actually appears to diminish privacy in some respects by making information that might otherwise be private into more easily identifiable and snoop-able information,” Abernathy said. However, she said “CALEA directs carriers in meeting the government’s needs… in a manner that protects the privacy and security of information that is not authorized to be intercepted.”
Govt. agencies such as Pentagon, Homeland Security Office, Transportation Security Administration an Dept. of Justice (DoJ) should have access to private database, said Stewart Baker of Steptoe & Johnson: “There is a very good reason for that, because we have an intelligence failure that can be traced to [the inability] to search readily available databases.” Baker said “we could have found 11 terrorists before September 11, [but we didn’t] because we didn’t have an easy, integrated way of going to look through data that was readily available to the private sector. We need to be able to get access to that data in an efficient way.”
“The FCC and the Congress need to be as protective of consumers’ privacy as they possibly can,” said Privacilla.org Editor James Harper. Discussing online privacy, he said laws such as Children’s Online Privacy Protection Act, ISP Privacy Law in Minn. and CIPA “deliver… higher prices, less services available in a marketplace and not much privacy at all.” Harper said it was important “to put forward a definition of privacy from which policymakers can work to separate nonprivacy issues and do a better job to address directly true privacy issues.” He said privacy was “a subjective condition” that existed when 2 factors were in place: (1) People had legal power to control information about themselves. (2) They exercised legal power consistent with their values and interests.
People need to understand “how the information moves [in an online world] and act according to their interests,” Harper said:
“The Internet changed how the information moves. We all need to learn about what happens when you're online.” However, he said “online and telecom privacy problem will probably last about a generation because teenagers today have fantastic knowledge and understanding how information is moving today in online world.”
Technology is outstripping privacy, Berman said. He said in 1986, when Electronic Communications Privacy Act was under consideration, wiretap statutes covered oral communications but didn’t deal with e-mails. “Rather than waiting for the court, we went to the Congress to sort out what technology can expect within expectations of privacy, not to let the courts on case-by-case basis probably get it wrong,” Berman said: “Law, not the Constitution, [deals] with our privacy expectation.” He said technology also could “overrun law enforcers,” as happened with CALEA, when “technology was developing so fast that the FBI said correction was needed and wiretapping had to be built in advanced telecom systems.”