Surveillance by Design By Wendy Grossman

[Matthew Gaylor]

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.


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