Obama faces major online privacy test

President Obama's promise to improve Internet privacy laws faces a major test: will he side with law enforcement or a new coalition including Google, Microsoft, eBay, AT&T, and advocacy groups? It took years for a similar privacy coalition in the 1990s to claim victory.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read

When Barack Obama was campaigning for the presidency in 2008, he promised that as president, he would "strengthen privacy protections for the digital age."

That pledge will be put to the test as the Obama administration considers whether to support a new privacy proposal released by a coalition including Google, eBay, Microsoft, AT&T, the ACLU, and Americans for Tax Reform. CNET was the first to report on the proposal in an article published Monday.

The group, the Digital Due Process coalition, is calling for a federal law requiring police to obtain search warrants before tracking Americans' cell phone locations or accessing their e-mail and documents stored in the cloud--positions that place its members squarely at odds with the Obama Justice Department.

In case after case during the past decade, the Justice Department has said that successful criminal investigations depend on being able to obtain that information without search warrants. Prosecutors told a federal appeals court in Philadelphia last month, for instance, that Americans enjoy no "reasonable expectation of privacy" in their, or at least their mobile phones', whereabouts.

The White House on Tuesday referred questions from CNET about changes to the 1986 Electronic Communications Privacy Act, or ECPA, to the Justice Department. A spokeswoman for the department said: "At this point, I can say we're reviewing the recommendations put forth."

"I'm hopeful the administration will see the light and support the coalition's principles for privacy reform," says technology analyst Ryan Radia of the libertarian Competitive Enterprise Institute, a coalition member. "The coalition's proposals will not unreasonably constrain law enforcement efforts."

Of course, law enforcement may see things differently. Perhaps the closest parallel is the political trench warfare over encryption regulations in the 1990s, during which the FBI successfully blocked attempts to reform the Cold War-era laws that were supported by a similarly broad coalition of consumer groups and technology companies.

There was no rhetorical mountain too steep for then-FBI director Louis Freeh to climb. In 1997, Freeh told a Senate panel that "uncrackable encryption will allow drug lords, terrorists, and even violent gangs to communicate with impunity." He predicted that relaxing federal regulations would let crypto "proliferate to the point where any kidnapper or any drug dealer could purchase it off the shelf and connect up with a network which would make all of those activities covert."

It took the better part of a decade for the White House to side with privacy interests over law enforcement. In an echo of the Digital Due Process coalition today, the Clinton administration's eventual decision was catalyzed by the Americans for Computer Privacy lobby group that brought together the leading tech companies of the era: Microsoft, Netscape Communications, and Oracle. The Center for Democracy and Technology helped to organize it, as it has helped the Digital Due Process coalition, and the ACLU and the Electronic Frontier Foundation also lent a hand.

Jim Dempsey, a vice president at the Center for Democracy and Technology, says it's important to distinguish the Justice Department's position in court--where its attorneys have argued for a narrow view of Americans' privacy rights and an expansive view of police powers--from an administration-wide position adopted by the White House.

"So far, there is no administration position on what the law should be regarding any of our proposals," Dempsey said. "There is a benefit to the government to having these issues clearly resolved."

The Digital Due Process coalition already has met with attorneys from the Justice Department's computer crime unit, White House attorneys, FBI representatives, and Commerce Department officials, Dempsey said. He declined to provide details, except to say that the law enforcement meetings were "respectful" and "substantive."

Cathy Sloan, a vice president at the Computer and Communications Industry Association, said law enforcement will recognize that privacy concerns are important. "All of the agencies know that this is an important balance that China has wrong in our view," she said. "Even our Justice Department doesn't want a culture like China. They know they need to engage so we can strike the right balance."

One potential obstacle is that the Digital Due Process coalition appears to be strong but brittle: members Google and Microsoft are archrivals, and some wags are sure to say that AT&T joined solely to repair its reputation among customers unhappy about reports that it illegally opened its network to the National Security Agency.

Another fault line is the list of differences between industry and advocacy groups like the ACLU, which would like more regulations targeting private companies. Marc Rotenberg, director of the Electronic Privacy Information Center, which has not joined the coalition, says its proposals are a good start. But, Rotenberg says, one difference he has with the coalition's goals is that EPIC "would like a broader range of interests considered, including data minimization, consumer protection, and crypto and security standards." Which industry members would steadfastly oppose.

Promising but uncertain political future
Because the Digital Due Process coalition's proposals don't affect the ability of police to conduct national security investigations, members of the group hope that opposition will muted. (Members of Congress can be reluctant to confront the FBI and other police agencies directly on surveillance topics--they can be blamed for investigations said to have failed because of a law they supported or opposed--and a threatened veto by Obama would almost certainly doom any legislation.)

There are some early signs of interest on Capitol Hill: Sen. Patrick Leahy, the Democratic chairman of the Judiciary committee, said Tuesday that "our federal electronic privacy laws are woefully outdated"; House Judiciary committee chairman John Conyers, a Michigan Democrat, and two subcommittee chairmen said they will "review this statute" and hold hearings this spring; Sen. Arlen Specter, now a Pennsylvania Democrat, said on Monday that he wanted to take a look at privacy law as well.

Acknowledging that a law written during the modem-and-BBS era of 1986 is outdated is not the same as committing to changing it, of course, and Leahy was careful to note that significant "law enforcement issues" remain. Leahy has championed law enforcement interests in surveillance debates before: he was the chief sponsor of a 1994 wiretapping law that outraged privacy advocates and required telephone providers to build in backdoors for police surveillance.

On the other hand, this coalition is helped by the fact that conservative and libertarian groups have signed on, including the Progress and Freedom Foundation, Citizens Against Government Waste, and Americans for Tax Reform. Rep. Bob Goodlatte, a Virginia Republican who was an industry ally in the 1990s encryption debate, circulated a statement on Tuesday saying: "It is necessary that Congress continue to examine federal laws...I applaud this coalition for its work on these recommendations regarding the ECPA and I look forward to working with the coalition, the law enforcement community, and others in examining this law."

"This is an opportunity for President Obama to show that he understands President Reagan's central lesson: 'Government is not the solution to our problem-- government is the problem,'" says Berin Szoka, an attorney at the Progress and Freedom Foundation. "These proposals offer a sensible, long-overdue way of protecting us from the real Big Brother, our government, without crippling law enforcement or the private companies that keep giving us all wonderful new content and services, mostly for free."