Surveillance by Design http://www.sciam.com/2001/0901issue/0901scicit5.html WILL A NEW CYBERLAW BYPASS THE U.S. CONSTITUTION? --BY WENDY M. GROSSMAN Wendy M. Grossman, who writes about cyberspace issues from London, is also on the board of Privacy International LONDON--A legislative move in Europe that would also affect the U.S. is threatening the sometimes controversial ability of Internet users to mask their real-world identities. The move, which is heavily backed by the U.S. Department of Justice, is the cybercrime treaty, designed to make life easy for law enforcement by requiring Internet service providers (ISPs) to maintain logs of users' activities for up to seven years and to keep their networks tappable. The Council of Europe, a treaty-building body, announced its support of the cybercrime effort in June. Anonymity is a two-edged sword. It does enable criminals to hide their activities. But it is also critical for legitimate citizens: whistle-blowers, political activists, those pursuing alternative lifestyles, and entrepreneurs who want to acquire technical information without tipping off their competitors. Even without the proposed legislation, anonymity is increasingly fragile on the Net. Corporations have sued for libel to force services to disclose the identities of those who posted disparaging comments about them online. Individual suits of this type are rarer, but last December, Samuel D. Graham, a former professor of urology at Emory University, won a libel judgment against a Yahoo user whose identity was released under subpoena. Services designed to give users anonymity sprung up as early as 1993, when Julf Helsingius founded Finland's anon.penet.fi, which stripped e-mail and Usenet postings of identifying information and substituted a pseudonymous ID. Users had to trust Helsingius. Many of today's services and software, such as the Dublin-based Hushmail and the Canadian company Zero Knowledge's Freedom software, keep no logs whatsoever. But if the cybercrime treaty is ratified, will they still be able to? Would they have to move beyond the reach of the law to, say, Anguilla? More than that, will the First Amendment continue to protect us if anonymity is effectively illegal everywhere else? Says Mike Godwin, perhaps the leading legal specialist in civil liberties in cyberspace: "I think it becomes a lot harder for the U.S. to maintain protection if the cybercrime treaty passes." Godwin calls the attempt to pass the cybercrime treaty "policy laundering"--a way of using international agreements to bring in legislation that would almost certainly be struck down by U.S. courts. (On its Web site, the U.S. Department of Justice explains that no supporting domestic legislation would be required.) In real-world terms, the equivalent of the treaty would be requiring valid return addresses on all postal mail, installing cameras in all phone booths and making all cash traceable. People would resist such a regime, but surveillance by design in the electronic world seems less unacceptable, perhaps because for some people e-mail still seems optional and the Internet is a mysterious, dark force that is inherently untrustworthy. Because ISPs must keep those logs and that data, your associations would become an open book. "The modern generation of traffic-analysis software not only can link to conventional police databases but can give a comprehensive picture of a person's lifestyle and communications profile," says Simon Davies, director of Privacy International. "It can automatically generate profiles of thousands of users in seconds and accurately calculate friendship trees." In the not too distant future, nearly everything that is on hard copy today will travel via e-mail and the Web, from our medical records to the music we listen to and the books we read. Whatever privacy regime we create now will almost certainly wind up controlling the bulk of our communications. Think carefully before you nod to the mantra commonly heard in Europe at the moment: "If you have nothing to hide, you have nothing to fear." Do you really want your medical records sent on the electronic equivalent of postcards? __________________________________________________________________________ Distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. --- FOR ME BUT NOT FOR YOU? As counterculturalist Stewart Brand has said, anonymity can be toxic to community, because it can foster irresponsible activity and sow mistrust. But an experiment some years back on the WELL, the San Francisco--based electronic conferencing system, showed that people typically wanted anonymity for themselves--just not for others. PRECEDENTS FOR PRIVACY In the U.S., the right to be anonymous is protected under the First and Fourth amendments. According to Mike Godwin, author of Cyber Rights, two significant Supreme Court cases establish the precedents. NAACP v. Alabama The 1958 ruling upheld the NAACP's refusal to disclose its membership lists on the grounds that this type of privacy is part of the right to freedom of assembly. McIntyre v. Ohio Elections Commission The 1995 ruling struck down a requirement, instituted to control campaign spending, that political pamphlets include the name and address of their issuer. ************************************************************************** Subscribe to Freematt's Alerts: Pro-Individual Rights Issues Send a blank message to: freematt@coil.com with the words subscribe FA on the subject line. List is private and moderated (7-30 messages per week) Matthew Gaylor, (614) 313-5722 ICQ: 106212065 Archived at http://groups.yahoo.com/group/fa/ **************************************************************************