<-- The Filter --> June 2001

June 26, 2001
No. 4.2  .  The Filter  .  06.26.01

Your regular dose of public interest Internet news and commentary from
the Berkman Center for Internet & Society at Harvard Law School


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> Supreme Court Rules Blue Line Cannot Cross "Bright" One: In a decision with far-reaching implications for privacy protection in an age of rapid technological development, the US Supreme Court ruled two weeks ago that law enforcement officials' warrantless infrared scan of a home was an unlawful search, barred by the Fourth Amendment. The case, Kyllo v. United States, began in 1992 when federal agents used a heat-sensing device to scan Danny Kyllo's home, where they believed marijuana was being grown under high-intensity lamps. The decision, which split the court 5-4 along unusual ideological lines, states that the warrant requirement would apply not only to heat-sensing equipment but also to any "more sophisticated systems" that give police officers information not otherwise obtainable without physical intrusion of the home. Justice Antonin Scalia, who wrote the opinion for the majority, said that the court's precedents draw "a firm line at the entrance to the house" and added that the line "must be not only firm but also bright."





> Where's That Line, Again?: What other kinds of "sophisticated systems" do police use to gather information not otherwise available without a physical search? Three days after the ruling, House Majority Leader Richard Armey (R-Texas) asked Attorney General John Ashcroft to reopen the government's investigation of the FBI Internet surveillance system Carnivore, citing arguments from the Kyllo decision. "[T]he Court held [...] that use of electronic devices to gather information that would not otherwise be available constitutes a search," wrote Armey. "It is reasonable, then, to ask whether the Internet surveillance system formerly known as 'Carnivore' similarly undermines the minimum expectation that individuals have that their personal electronic communications will not be examined by law enforcement devices unless a specific court warrant has been issued."



> Yep, Echelon is Real—But We're Not Pointing Any Fingers: In related news,the European Parliament issued a report last month confirming that Echelon—a global electronic surveillance system allegedly shared among the US, UK, Canada, Australia and New Zealand governments—does indeed exist. Long an "open secret" within the intelligence community but officially denied by the US government, Echelon reportedly intercepts global satellite and radio communications—including phone calls, faxes, and email—and then, Carnivore-like, sifts through them. Originally used to gather military intelligence, the system is now believed to be a tool for global corporate espionage—an allegation the report both does and doesn't support. Stating unequivocally that Echelon's purpose is "to intercept private and commercial communications," the report exhaustively lists specific instances in which it is alleged that US intelligence agencies used the system to give American businesses a competitive advantage in the global marketplace. It nevertheless concludes, however, that "no such case has been substantiated."




As this issue of The Filter was prepared for release, a committee on crimes for the Council of Europe signed off on the highly controversial Convention on Cyber-Crime treaty. Designed to address problems associated with trans-border law enforcement, the multinational treaty binds countries to establishing a minimum set of laws for dealing with high-tech crimes. What it doesn't do, according to public interest groups including the Center for Democracy and Technology (CDT), is ensure adequate privacy protection for citizens of the signing countries—or indeed, for any Internet user. "The treaty's framers started in the wrong place," said CDT Deputy Director James Dempsey. "While the privacy issues received somewhat more attention in the final stages of the [draft] process, the treaty does not have the specificity needed for meaningful privacy protection in the face of the increasing surveillance power of this new technology."




> But We Really Only Wanted to Spook Him a Little Bit: Early this month the Electronic Frontier Foundation (EFF) and others filed a a suit on behalf of Princeton University professor Edward Felten and a team of researchers who cracked the code for the Secure Digital Music Initiative (SDMI) watermark, asking for a declaratory judgment that the team has a First Amendment right to share its findings with the world at large. Felten and his team originally planned to publish the findings at a conference in April, but withdrew the paper when the Recording Industry Association of America (RIAA) and the SDMI Foundation threatened litigation—citing hotly-debated provisions in the Digital Millennium Copyright Act (DMCA). Now, however, the RIAA claims that it never intended to sue—but Felten and his fellow researchers aren't backing down. According to the EFF the RIAA reversal is both disingenuous—it "doesn't pass the giggle test," according to staff attorney Robin Gross—and fails to remove the suit's raison d'etre. "EFF and the plaintiffs seek not only publication of this research paper without fear of prosecution, but a clear legal determination that no one needs the permission of the record companies before publishing and presenting scientific work," states an EFF press release.





> Now You Tax It, Now You Don't: When US politicians decry Internet "regulation," the issue in question is frequently either instituting federal rules for privacy protection or establishing a system for taxing Internet sales—both of which powerful constituencies have long argued would imperil the growth of e-commerce. Now, with a Clinton-era moratorium on taxing Internet access and on adding new multiple or discriminatory taxes scheduled to end in October, a promising bipartisan plan for what to do next has, not surprisingly, stalled. The plan called for an extension of the moratorium but also included provisions that would allow state and local governments to collect interstate Internet sales taxes once the states' systems for doing so had been "simplified." The deal-breaker? The compromise plan reportedly stopped short at spelling out precisely what "simplified" means. Representatives from the high-tech industry say this leaves too much to chance. "There has to be genuine, significant simplification. If the deal is as it is reported to be, we're very concerned," said Frank Julian, vice president of Federated Department Stores Inc. and chairman of the Direct Marketing Association's sales-tax group.




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This week we're featuring "A Victory for Privacy," a Wall Street Journal piece by Jeffrey Rosen calling the Kyllo v. United States decision "an occasion for all friends of privacy to dance in the street."

We're also featuring Philip Corwin's response to the article, which argues that the decision, while welcome, also "contains the seeds of its own destruction as a meaningful bulwark against technological erosion of privacy protections."

Follow the links below to access both Rosen's article and Corwin's response on journalist Declan McCullagh's "Politechbot" news site:



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> Tasini v. The New York Times—the Webcast: The US Supreme Court ruled this week in favor of freelance journalists in Tasini v. The New York Times, a landmark case involving rights to work republished in digital form. The case began in 1993 when Jonathan Tasini brought suit against several major publishers after they made his work available in online databases without asking his permission or offering additional compensation. Now, in a 7-2 ruling, the Supreme Court has determined that publishers must ask permission before making authors' work available online. "We conclude that the electronic publishers infringed the authors' copyrights by reproducing and distributing the articles in a manner not authorized by the authors and not privileged by (federal copyright law)," wrote Justice Ruth Bader Ginsburg for the majority.


Just before the Tasini hearing, Berkman Center affiliate Christopher Lydon—former host of the popular WBUR and NPR radio show The Connection—presented "Freelancers and Digital Rights," a webcast discussion of the case featuring principals Jonathan Tasini, Laurence Tribe, Kenneth Starr and others. For Filter readers who missed the original webcast, an audio archive is now available at the below URL:


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* Bugnosis Web Bug Detector


The Privacy Foundation's "Bugnosis" website, where you can download free software to detect "web bugs" that may be tracking your online behavior.

* US Department of Commerce: ChamberCAST


Features live and on-demand audio and video recordings of US Chamber of Commerce events.

* Geek Corps


Innovative nonprofit organization that works at bridging the global digital divide by pairing skilled volunteers from the high-tech world with small businesses in developing nations.

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"What many Americans don't realize is that in the off-line world, they have already lost most of their privacy [...] If privacy is a right, and several Supreme Court cases suggest that it is to an extent, then we have to make certain that the off-line world and the online world are thinking about privacy in the same context."

—Senator John Kerry (D-Mass.) at a recent meeting of the Massachusetts Software & Internet Council Inc., giving a kinder, gentler version of Scott McNealy's "You have zero privacy. Get over it" speech.


"Central casting could not have sent a better defendant."

—Berkman Center Faculty Co-Director Jonathan Zittrain, of SDMI-cracking Princeton University professor Edward Felten, who declined the role in favor of plaintiff.


"Terrorists really like to make sure that what they do works. They do very nicely with explosions, so we think largely they're working on that."

—Lawrence Gershwin, adviser to the CIA on technology and science issues, on why cyberwarfare is a less popular form of terrorism than a good old-fashioned bomb.


"If (the police) apprehend someone with a tattoo that's not a young lady or a snake, they can log onto our website and check out if that tattoo represents a hate organization."

—Abraham Foxman, National Director for the Anti-Defamation League, describing the organization's new website, which features a handy database of extremist group symbols and literature (via Wired).


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January 15, 2008