National Journal's Technology Daily | April 2, 2003

Civil Liberties

Experts Call White House Anti-Terrorism Efforts Ineffective

by Drew Clark

NEW YORK -- A leading computer-security expert and the longtime director of the American Civil Liberties Union on Wednesday said the Bush administration's anti-terrorism tactics should be opposed because they are ineffective and not because they impinge on civil liberties.

In the keynote speech at the annual Computers, Freedom and Privacy conference here, computer expert Bruce Schneier said most security measures instituted since the Sept. 11, 2001, terrorist attacks are ineffective when their costs and benefits are analyzed. He cited an array of examples, including military actions against terrorists in the Philippines, secrecy in government and industry, and moves toward a system of national identification.

Former ACLU chief Ira Glasser said civil liberties advocates should shift tactics by rejecting the way the government frames the issue instead of arguing for freedom versus security.

"You cannot go out and argue that privacy is important when everyone is afraid," said Glasser, the group's executive director from 1978 to 2001. He said instances in American history demonstrate that trading civil liberties for security is a bad bargain because previous occasions of that practice have yielded no security benefits.

Recalling the Alien and Sedition Acts of 1798, the Sedition Act of 1917 and the internment of Japanese Americans during World War II, Glasser said, "Not one treasonous act was ever uncovered, not one criminal act was ever uncovered, and no one was even identified."

"There is no point in getting into the argument in the first place of safety versus liberty," he said. "Once you give way to the argument, they will not listen to arguments about freedom and rights and liberty. Only if it [the alleged security measure] is a scam will it matter."

Schneier proposed a five-question framework designed to take security efforts out of the realm of emotion and put them into a framework of rational analysis. He asked: What assets are you trying to protect? What are the risks to those assets? How well does the security solution mitigate those risks? What other risks does the solution cause? And what costs and trade-offs does it impose?

The answers could be used to evaluate whether the trade-offs are worth it, Schneier said. He does not believe the government's anti-terrorism measures would pass that test, and he said the only effective means to voice dissatisfaction with government policy is to unseat the current administration in the next election.

"Look at the data. Most terrorism is low-tech attacks and small-scale.

Sept. 11 was an anomaly," Schneier said. "This is where you have to be rational. It plays well to pass laws, and it plays well in a movie."

But audience member Herb Lin, a senior scientist at the National Academies of Science, challenged that last assertion. "I don't know how to assess the risk [of future terrorism], but I am sure it is not zero," he said.


Advocacy Groups Call For Unity To Fight More Surveillance

by Drew Clark

NEW YORK -- Privacy advocates, civil liberties groups and immigrants' rights groups must become politically united to counter increased surveillance since the Sept. 11, 2001, terrorist attacks, a representative from each constituency said here on Wednesday.

"The developments in surveillance and spying are being most used and most enforced in immigrant communities," said Anthony Romero, executive director of the American Civil Liberties Union (ACLU). Speaking on the opening panel at the annual Computers, Freedom and Privacy conference, he told the technology-savvy audience, "You [must] make the connection between technology and the Arab sector" because Arabs are being targeted for surveillance.

Nawar Shora, legal adviser with the American-Arab Anti-Discrimination Committee, and Jim Dempsey, executive director of the Center for Democracy and Technology, concurred with Romero's judgment.

Dempsey, whose organization has worked with tech companies in seeking to end restrictions on the export of cryptographic tools and to limit the scope of a mid-1990s electronic wiretapping initiative, said corporations largely have abandoned their electronic privacy counterparts.

"I'm afraid to say that that corporate-civil liberties alliance has been seriously degraded," he said. "The industry, by and large, has moved to the position of immunization," or one in which officials say, "We don't care what the rules are; we will comply as long as we are freed from privacy lawsuits from our customers."

"That is something that will need to be turned around" in the long run, Dempsey said as he underscored the importance to "build new alliances with immigrant rights communities."

Romero said President Bush's initial instinct after Sept. 11 was to reach out in friendship to the Arab-American community, including several high-profile visits to mosques. But that effort crumbled amid subsequent initiatives of Attorney General John Ashcroft, he said.

Romero listed measures that he said have created a "palpable sense of fear and xenophobia" against Arab Americans: a new anti-terrorism law that changed both surveillance and immigration law, secret detentions of immigrants, FBI interviews with more than 8,000 young Arab American men, and the mandatory registration and fingerprinting of non-citizens from Arab and Muslim nations.

"They have very much turned the war on terror into a war on immigrants," Romero said of the Bush administration. Of Ashcroft he said: "This man is the one who is responsible for shutting down dissent and debate. That responsibility goes right back to our attorney general."

Shora said in spite of protests to the contrary by the Justice and Homeland Security departments, "the phenomenon of flying while brown" or air travelers facing special scrutiny because of national origin -- "has sprung up." He cited instances in which U.S. citizens of Arab descent have been forced to register fingerprints at the border.

In addition to concurring on the need to build more bridges to immigrant groups, Dempsey said it is important to breath new life into legal theories that could sustain privacy rights in information held by third parties.

National Journal's Technology Daily AM Edition | April 3, 2003

Technology Daily Special Report

Privacy Experts Urge Vigilance Against Surveillance

by Drew Clark

NEW YORK -- Because the government's electronic surveillance initiatives start small but inexorably expand, privacy groups must remain vigilant against even the slightest encroachment on Internet-based communications, three privacy advocates said on Wednesday.

In the past decade, said David Sobel, general counsel for the Electronic Privacy Information Center (EPIC), the Justice Department has taken the view that "you have given us an inch, we now need to take a foot, we now need to take a mile." He spoke as part of a panel discussion at the Computers, Freedom and Privacy conference here.

Since the Sept. 11, 2001, terrorist attacks, added Kate Martin, director of the Center for National Security Studies, "those most vulnerable and who face the greatest threat are the non-citizens who live and work in the U.S." Martin expressed alarm that legislation to limit the privacy rights of non-citizens soon might secure unanimous passage in the Senate.

"If the community doesn't come together on the privacy rights of non-citizens, if it can be split on the lines of citizens and non-citizens, we are going to lose" the broader battle for communications privacy, Martin said.

Sobel said the Justice Department under both President Bush and former President Clinton have adopted an expansive view of the 1994 Communications Assistance for Law Enforcement Act (CALEA), which enabled wiretaps on digital telephone networks but included language barring the law's application to the Internet.

Sobel said the FBI surveillance system popularly known as "Carnivore" disregarded CALEA's restrictions against Internet surveillance, and he cited a piece of draft legislation prepared by Justice Department officials would explicitly lower the standard for electronic surveillance of multi-function devices that receive both phone calls and e-mails.

"We have come far from the assurance that FBI gave Congress that the Internet and emerging Internet technologies were not going to be affected by CALEA," Sobel said.

Speaking on the same panel, American Civil Liberties Union (ACLU) attorney Ann Beeson recounted the Kafkaesque experience of trying to take part in the secretive workings of the Foreign Intelligence Surveillance Court of Review.

The court consists of three appeals-court judges picked by Supreme Court Justice William Rehnquist. Both it and the lower Foreign Intelligence Surveillance Court were created under a law that set the statutory framework for electronic and other surveillance inside the United States that is aimed at collecting foreign intelligence information. In the first decision in its 25-year history, last November the review court overturned the lower court's decision limiting an expansive reading of an October 2001 anti-terrorism law known as the USA PATRIOT Act.

"We didn't even know who to call," Beeson recounted of the ACLU's fight in that court system. "When someone called out of the blue and said they were our contact with the secret FISA court, I felt like we were talking to 'Deep Throat.'"

ACLU and other groups were disappointed with that result and filed a motion seeking Supreme Court review of the decision. Last week, the high court rejected that motion.

National Journal's Technology Daily PM Edition | April 3, 2003


Observers Debate Merits Of 'Open Access' Via Cable Lines

by Drew Clark

NEW YORK -- A Microsoft lobbyist and a consumer advocate on Thursday urged the FCC to limit cable companies' ability to control the content or services obtained via high-speed Internet connections, but a cable industry attorney said no limits are necessary.

Addressing a morning panel at the Computers, Freedom and Privacy conference here, Microsoft regulatory counsel Paula Boyd and Jeff Chester, executive director at the Center for Digital Democracy, said high-speed access, or broadband, is essential to realizing the Internet's potential.

"The ability for human beings to get to the Internet, get content and use it in a manner that is valuable to them" is a key concern of Microsoft, said Boyd, a former telecommunications aide to Sen. Ernest (Fritz) Hollings, D-S.C. "At the end of the day, we believe the broadband network has tremendous potential to change the way consumers live."

Chester framed the issue of "open access" to broadband networks as one of preserving a role for democratic discourse in the Internet era. He said the cable giants threaten the "common carrier" model of the telephone companies, which allows anyone to interconnect and use the competing companies' networks for a fee.

Chester said the cable companies' goal, on the other hand, "is to control the bit stream and have everything flow through their central services" or those of their partners. He added that "the power of the cable industry has left Disney and Microsoft quaking in their boots."

Chester's group is part of the Coalition of Broadband Users and Innovators, which includes Microsoft, The Walt Disney Co., Yahoo and eBay.

Boyd said Microsoft does not share the open-access goals of Chester's group, but she added that they agree on the need for an FCC regulation giving consumers access to any content within their bandwidth rules and letting consumers connect any Internet-ready device to the Internet as long is it would not harm the network.

In deploying its Internet-connected version of the Xbox videogame console, Boyd said, Microsoft consulted with cable providers to ensure the ability to connect the console to the Internet through the cable providers' broadband lines.

Although "we accepted that as part of that process," smaller companies may not be able to do so, she said. Those entrepreneurs "may not build the devices unless there is certainty that consumers will be able to buy" and use them on the Internet, she added.

But Mike Schooler, general counsel of the National Cable and Telecommunications Association, said such talk is overblown. "There is no problem about access to content, application and hardware layer," he said. "I have found no examples of Internet service providers limiting the hardware on the network. We don't do it, I don't think it is going to happen."

Barry Steinhardt, associate director of the American Civil Liberties Union, and chairman of the conference here, has been a key proponent of open access to cable broadband networks.

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