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This article is from the In-Depth Report Technology and the Emerging Post-Privacy Era

I Hear Ya: Bush Signs Expanded Wiretap Power into Law

President scores victory in effort to widen scope of federal government's warrantless recon power



Courtesy of iStockphoto

President Bush signed a bill into law Thursday that broadens the government's surveillance power. The move came just a day after the Senate passed the legislation, by a 69-to-28 margin, culminating months of political fireworks. The package includes a controversial clause that grants immunity to telecommunications companies that participate in National Security Agency warrantless wiretapping approved after the Sept. 11, 2001, terrorist attacks.

The change is the most sweeping since the Foreign Intelligence Surveillance Act (FISA) was adopted three decades ago to prevent the government from spying on people in the U.S. suspected of engaging in espionage or terrorism without court approval. The new provisions allow the U.S. Justice Department and National Security Agency (NSA) to recruit telephone companies to bug their customers' phone conversations, and prohibit lawsuits against the telecoms for privacy rights violations. The measure also protects the companies against suits for past wiretaps. That means lawsuits will likely be dropped against AT&T and Verizon that charged they had violated privacy rights by tapping their customers phone lines at the request of the NSA. (Qwest Communications, on the other hand, refused similar requests in 2001.)

In passing the FISA Amendments Act, Congress endorsed Bush's view that the federal government does not require approval from normal federal courts–whose actions are generally made public–to initiate wiretaps on lines of people believed to be terrorists or foreign intelligence agents. Instead, FISA established the U.S. Foreign Intelligence Surveillance Court (FISC) specifically to oversee requests for surveillance warrants. The federal government is the only party to FISC proceedings, which are presided over by one of 11 federal district judges who serve the court and are chosen by the chief justice of the U.S. Supreme Court. FISC proceedings are closed to the public, FISC records are not available to the public, and the court rarely rejects Justice Department surveillance requests.

The American Civil Liberties Union filed a lawsuit Thursday to stop the government from conducting surveillance under the new wiretapping law, arguing that it violates First- and Fourth-Amendment rights to free speech and privacy. Other privacy advocates also see the law as a dangerous precedent that strips away checks put in place to make sure the government does not abuse its power. Without the normal federal courts requiring the federal government to justify whom it spies on, "we don't have a way to find out what's happening," says Guilherme Roschke, a lawyer with Electronic Privacy Information Center (EPIC), a Washington, D.C., public interest group focusing on privacy rights. "When wiretaps are made easier, there's a greater chance that they will be abused by the government."

Commercial surveillance, too?


Similar fears about access to personal information have hounded the Internet as well. Just hours before the Senate's vote on Wednesday, the Senate's Committee on Commerce, Science and Transportation held a hearing to address the issue of the private information Internet companies provide about their customers to online advertisers. "We need to take a closer look, I think, at Internet users' privacy as the field of online advertising develops," Sen. Byron Dorgan (D–N.D.) said during a hearing yesterday. "I'm concerned about users' ability to control [their personal] information."

Added panel chairman Sen. Daniel Inouye (D–Hawaii), "Too many consumers spend time on the Internet without knowledge or notice that they are under commercial surveillance. I am troubled by the current state of affairs."

Companies that stand to profit from online advertising, including Microsoft, Google and Facebook, argued that access to information about who is using the Internet and what they are looking for is crucial to keeping the Web's wealth of information available to the public at little or no cost. (Online advertising pays for a lot of the Web's free content.) "Online advertising has become the very fuel that powers the Internet and drives the digital economy," Michael Hintze, Microsoft associate general counsel, testified. "Simply stated, the Internet would not be the diverse and useful medium it has become without online advertising."

Many advertisers have deals with Web sites to provide them with user information based on their page views and links they click to on those sites. "The objective we face is to maintain the growth of online advertising while protecting consumer privacy," Hintze said.

But doing so is easier said than done. Often attempts to hook up advertisers with users backfires. To wit: Facebook, a social networking Web site with more than 80 million users worldwide, took heat in November for a program on its site called Beacon, which tracked the viewing habits of members (such as other sites they visited and what merchandise they purchased online) and automatically posted the information to members' Facebook pages without their consent; it even sent this information to other users that the members had designated as friends.

"We discovered in the weeks after the launch that users felt they did not have adequate control over the information and how it was being shared with their friends," Facebook chief privacy officer, Chris Kelly, said at the congressional hearing. More than 50,000 Facebook users signed a petition protesting the new program, which prompted the site to change the program, giving users more control over what information could be shared and notifying them before it was passed along.

Google, which receives most of its revenue from online advertising, does not create profiles of visitors. (Profiles include information such as a person's name, e-mail address, age, gender and other characteristics that can be matched with Web surfing habits to enable advertisers to better target their ads.) Google's senior privacy attorney, Jane Horvath, said at the hearing that the company does not keep profiles of the people who use its Google.com search engine, nor does the company record users' Web surfing habits for advertisers to use. She acknowledged, however, that Google may be straying from its original approach and is experimenting with a feature that would deliver ads to its users based on both the user's current query and a previous search.

Horvath said that Google would support a comprehensive federal privacy law that establishes uniform standards for safeguarding data on all Web sites. The company, as well as competitors Microsoft and Yahoo!, last year began stripping personal information from records stored in its databases for more than 18 months to safeguard users' identity.

In related news, a Senate Judiciary Committee panel is set to hold a hearing on Tuesday (July 15) to examine the impact of Yahoo!'s decision last month to use Google's advertising software to better target Internet advertising on Yahoo!'s search engine site.

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