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Rewriting the fourth amendment

Industry Standard

May 12, 2000
Web posted at: 9:25 a.m. EDT (1325 GMT)

(IDG) -- Everyone in the Internet Economy felt a little violated in early February when, eBay, Yahoo and other leading sites were shut down by hackers using "distributed denial of service" attacks. But the cost of the incidents didn't only affect peace of mind: According to the Yankee Group, the Net companies lost $1.2 billion. The events spurred Congress to summon Attorney General Janet Reno and FBI Director Louis Freeh to Capitol Hill to testify about efforts to nab the culprits.

Even as Reno and Freeh were briefing Congress on their investigation, which eventually led to the arrest last month of a Canadian teenager nicknamed "Mafiaboy," the federal law chieftains couldn't resist making a pitch for extra dollars for enforcement. More important, the attorney general warned, "substantive laws and procedural tools are not always adequate to keep pace with the rapid changes in technology."


Reno asked Congress to update the rules. Among other things, she wants her investigators to have the authority to track communications across state lines without getting judicial approval in each jurisdiction. Freeh says that the U.S. economy and the public's sense of safety depend on aggressive policing.

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But the price for technological -- and economic -- security could be steep. Internet companies must balance their self-interest in maintaining a secure network with law enforcement's occasionally heavy-handed demands, while keeping their customers' privacy in mind. Civil libertarians worry that overzealous cybersleuths will trample the Fourth Amendment, which bars "unreasonable" searches and seizures, and requires authorities to "particularly describe" the place they want to search and the persons or materials they expect to find.

The Net makes Fourth Amendment questions more complex than the days when law enforcement abuse meant the raiding of American colonial homes by British soldiers. But privacy advocates say the old precepts are still enough to protect civil liberties, as long as the spirit of the constitutional framers is carried into the digital age.

"We do not need a new Fourth Amendment for cyberspace," says James Dempsey, senior staff counsel at the Center for Democracy and Technology in Washington. "But we need to recognize that people are conducting more of their lives online. The price tag for this technology should not include a loss of privacy."

Dempsey and other activists have no quarrel with police chasing online criminals. But they say law enforcement should respect historic constraints, such as the need for subpoenas and wiretap orders.

Some Congress members agree that law enforcement shouldn't be given carte blanche to roam the Web in the name of the law. Rep. Bob Barr (R-Ga.) has criticized a recent Securities and Exchange Commission proposal to monitor chat rooms and Web sites for signs of illegal stock trading.

Still there are signs of bipartisan support on Capitol Hill for updates to Fourth Amendment law, which hasn't undergone a serious overhaul since the Electronic Communications Privacy Act of 1986. Among other provisions, the ECPA stipulated that wireless voice communications were covered under the Fourth Amendment to the same degree as land-line communications. However, in 1976 the Supreme Court ruled that personal data given to a third party loses its Fourth Amendment protection. In a world where so much personal information is stored online, the potential for constitutional abuse is staggering.

Justice Department officials contend personal privacy is best guarded by vigorous policing. But policing could have the opposite effect. For instance, requiring encryption software and hardware makers to hold a decoding key in "key escrow" is the equivalent of asking a bank to hold an extra set of safe-deposit-box keys. More keys means there's a greater chance someone will swipe the goods.

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