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  From: luis terrassa <luiste@prw.net>
  To  : <CPC@emoglen.law.columbia.edu>
  Date: Thu, 10 Mar 2005 15:24:34 -0500

Fwd: Paper #1: Privacy and Electronic Communications

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Begin forwarded message:

> From: luis terrassa <luiste@prw.net>
> Date: March 10, 2005 3:07:57 PM EST
> To: Eben Moglen <moglen@columbia.edu>
> Subject: Re: Paper #1: Privacy and Electronic Communications
>
> Luis E. Terrassa
> Computers, Privacy and the Constitution,
> Prof. Eben Moglen
> Paper #1, Spring 2005
>
> Privacy is Essential to Safeguard Constitutional Protections in the=20
> Digital Age
>
>
> The existence and extent of a constitutional right to privacy,=20
> including its precise location in the Bill of Rights, has been the=20
> subject of much debate among constitutional scholars in this country.=20=

> There should be no doubt, however, of the fact that a reasonable=20
> expectation of privacy from intrusion and surveillance by government=20=

> is essential to the exercise of some of the rights enshrined in the=20
> Constitution. For individuals to fully exercise their freedom of=20
> speech, assembly, religion and the right to counsel, a sufficient=20
> certainty that authorities are not listening in on their=20
> conversations, reading their mail, or keeping tabs on who they meet=20
> with to discuss their ideas is essential.
> The development of new means of communication, a political climate=20
> defined by fear of terrorist attacks and other as yet undefined=20
> threats, and improvements in surveillance technology, have combined=20
> undermine the reasonableness of our expectation of privacy. If we are=20=

> to continue to enjoy the freedoms that the Constitution guarantees, it=20=

> is of paramount importance that we defend our fundamental right to=20
> expect that our activities will not be subject to government=20
> monitoring and surveillance.
> 	It has long been held, both inside and outside of the courts, =
that a=20
> fear of surveillance is sufficient to modify a person=92s behavior in=20=

> the direction of what that person believes those listening in would=20
> consider appropriate. We can call this =93self-censorship=94, or =93the=20=

> chilling effect=94 of surveillance. It is perhaps most clear in the =
case=20
> of attorney-client communications, when the ability to communicate to=20=

> an attorney the information necessary to one=92s defense may be=20
> altogether obliterated by fear that others might be listening in.=20
> Courts have generally recognized that it is very difficult to assert=20=

> Sixth Amendment rights without heightened protection for the=20
> communications between attorney and client. Unfortunately, that view=20=

> was not shared by former Attorney General John Ashcroft when he=20
> enacted a Bureau of Prisons rule that practically eviscerates that=20
> guarantee for anyone in U.S. Federal custody, whether convicted or=20
> not.
> 	The past decade has been characterized by an enormously rapid=20
> development in electronic communications, including the increasingly=20=

> important role that the Internet has come to play in everyday life.=20
> This phenomenon highlights the need to safeguard constitutional=20
> freedoms from encroachment by government which, in the name of such=20
> goals such as national security or the prevention of crime, can easily=20=

> erode our ability or willingness to communicate freely with one=20
> another, to share our views, and to associate with one another in ways=20=

> that perhaps the drafters of our Constitution could not have=20
> envisioned, even if they fortunately cast their net wide enough to=20
> provide for. For examples of what the government can do without=20
> adequate restraints on surveillance, one need only look back at the=20
> FBI=92s COINTELPRO program uncovered in the early 1970=92s.
> 	Today, e-mail is as essential a means of communication as is the=20=

> telephone, and the Internet is fast becoming as much a place of=20
> association and assembly as the town square ever was. Most people use=20=

> them under the assumption that their communications are at least as=20
> protected from surveillance as anything they might say over the phone=20=

> or at a meeting. It is becoming increasingly clear that the laws=20
> enacted to deal with technological change are, at best, haphazard and=20=

> random, and that the enforcement of Constitutional guarantees as=20
> regards electronic communication is a long way away from affording the=20=

> reasonable expectation of privacy that we all should be entitled to.=09=

> 	In 1967, the Supreme Court embarked upon a major reassessment of =
its=20
> views on wiretapping and surveillance, and decided two important=20
> wiretapping and eavesdropping cases by holding that the Fourth=20
> Amendment protects =93people, not places=94, and applies to those =
spheres=20
> that a person =93seeks to preserve as private=94. The Federal Wiretap =
Act=20
> enacted by Congress in 1968 was a response to these decisions. It=20
> requires court orders based on probable cause, after a finding that=20
> other investigative techniques have failed or are likely to fail, and=20=

> calls for =93minimization=94 to avoid interception of privileged=20
> communications or of those not related to the investigation.=20
> Unfortunately, the Act covered only =93oral=94 and =93aural=94 =
communications,=20
> which created a number of problems as the role of electronic=20
> communications continued to increase. Congress=92 response was not to=20=

> enlarge the scope of existing law to the new technologies, but to=20
> enact the Electronic Communications Privacy Act (ECPA) in 1986.
> 	The confusing and controverted provisions of the Act have=20
> increasingly been used by agencies to introduce new surveillance=20
> technologies with decreasing regard for constitutional safeguards. The=20=

> ECPA provides separate sections for communications in transit, stored=20=

> communications and data, and =93pen registers=94 (information =
identifying=20
> the sender and recipient, web site addresses, and other identifying=20
> information). Because each of these has different standards for=20
> judicial authorization and enforcement, including weakened=20
> exclusionary rule provisions, authorities can choose to intercept=20
> messages not =93in transit=94, but rather when they are stored at an =
ISP=20
> database, therefore avoiding many restrictions. With very little=20
> judicial supervision, they may learn the identities of anyone=92s =
e-mail=20
> contacts or identify every website a person visits. One court even=20
> struggled with whether the FBI was entitled to install a device to=20
> track one=92s keystrokes to decipher a password, so long as it =
refrained=20
> from activating it while the computer was actually transmitting data.
> 	To a large degree one=92s identity is today defined by those =
with whom=20
> one chooses to associate and communicate with, and by the things that=20=

> can be found inside one=92s computer drive. It is unlikely that a=20
> determination of whether a communication must be =93in transmission=94 =
or=20
> not for it to be subject to seizure is going to determine whether one=20=

> chooses to engage in it or refrain form it. If the Supreme Court in=20
> 1958 did not think that the government of Alabama was entitled to=20
> obtain a list of the local members of the NAACP on the grounds that=20
> this could inadvertently cause it to violate those members=92 freedom =
of=20
> association, should we not be entitled to some skepticism today about=20=

> the legitimacy of government=92s right to access our contact addresses=20=

> and website visits?
>
> Additional Sources:
>
> Barrett, Gwynne B., The Law of Diminishing Privacy Rights: Encryption=20=

> Escrow and the Dilution of Associational Freedoms in Cyberspace, 15=20
> N.Y.L. Sch. J. Hum. Rts. 115 (1998).
>
> Deirdre K. Mulligan, Reasonable Expectations in Electronic=20
> Communications: A Critical Perspective on the Electronic=20
> Communications Privacy Act, 72 Geo. Wash. L. Rev. 1557 (2004).
>
> Eichenlaub, Frank J., Carnivore: Taking a Bite Out of the Fourth=20
> Amendment? 80 N.C.L. Rev. 315 (2001).
>
> Snyder, Tom D., A Requiem for Client Confidentiality?: An Examination=20=

> of Recent Foreign and Domestic Events and their Impact on the=20
> Attorney-Client Privilege, 50 Loy. L. Rev. 439 (2004).
>
> Solove, Daniel J., The Future of Internet Surveillance Law: A=20
> Symposium to Discuss Internet Surveillance, Privacy & The USA PATRIOT=20=

> Act: Surveillance Law: Reshaping the Framework, 72 Geo. Wash. L. Rev.=20=

> 1264 (2004).

--Apple-Mail-16--964912007
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Content-Type: text/enriched;
	charset=WINDOWS-1252




Begin forwarded message:


<excerpt><bold><color><param>0000,0000,0000</param>From:
</color></bold>luis terrassa <<luiste@prw.net>

<bold><color><param>0000,0000,0000</param>Date: </color></bold>March
10, 2005 3:07:57 PM EST

<bold><color><param>0000,0000,0000</param>To: </color></bold>Eben
Moglen <<moglen@columbia.edu>

<bold><color><param>0000,0000,0000</param>Subject: </color>Re: Paper
#1: Privacy and Electronic Communications

</bold>

<fontfamily><param>Times New Roman</param>Luis E. Terrassa

<underline>Computers, Privacy and the Constitution</underline>,

Prof. Eben Moglen

Paper #1, Spring 2005


</fontfamily></excerpt><center><excerpt><bold><fontfamily><param>Times =
New Roman</param>Privacy
is Essential to Safeguard Constitutional Protections in the Digital Age

</fontfamily></bold></excerpt></center><excerpt><fontfamily><param>Times =
New Roman</param>


The existence and extent of a constitutional right to privacy,
including its precise location in the Bill of Rights, has been the
subject of much debate among constitutional scholars in this country.
There should be no doubt, however, of the fact that a reasonable
expectation of privacy from intrusion and surveillance by government
is essential to the exercise of some of the rights enshrined in the
Constitution. For individuals to fully exercise their freedom of
speech, assembly, religion and the right to counsel, a sufficient
certainty that authorities are not listening in on their
conversations, reading their mail, or keeping tabs on who they meet
with to discuss their ideas is essential.

The development of new means of communication, a political climate
defined by fear of terrorist attacks and other as yet undefined
threats, and improvements in surveillance technology, have combined
undermine the reasonableness of our expectation of privacy. If we are
to continue to enjoy the freedoms that the Constitution guarantees, it
is of paramount importance that we defend our fundamental right to
expect that our activities will not be subject to government
monitoring and surveillance.

	It has long been held, both inside and outside of the courts, =
that a
fear of surveillance is sufficient to modify a person=92s behavior in
the direction of what that person believes those listening in would
consider appropriate. We can call this =93self-censorship=94, or =93the
chilling effect=94 of surveillance. It is perhaps most clear in the case
of attorney-client communications, when the ability to communicate to
an attorney the information necessary to one=92s defense may be
altogether obliterated by fear that others might be listening in.
Courts have generally recognized that it is very difficult to assert
Sixth Amendment rights without heightened protection for the
communications between attorney and client. Unfortunately, that view
was not shared by former Attorney General John Ashcroft when he
enacted a Bureau of Prisons rule that practically eviscerates that
guarantee for anyone in U.S. Federal custody, whether convicted or not.

	The past decade has been characterized by an enormously rapid
development in electronic communications, including the increasingly
important role that the Internet has come to play in everyday life.
This phenomenon highlights the need to safeguard constitutional
freedoms from encroachment by government which, in the name of such
goals such as national security or the prevention of crime, can easily
erode our ability or willingness to communicate freely with one
another, to share our views, and to associate with one another in ways
that perhaps the drafters of our Constitution could not have
envisioned, even if they fortunately cast their net wide enough to
provide for. For examples of what the government can do without
adequate restraints on surveillance, one need only look back at the
FBI=92s COINTELPRO program uncovered in the early 1970=92s.

	Today, e-mail is as essential a means of communication as is the
telephone, and the Internet is fast becoming as much a place of
association and assembly as the town square ever was. Most people use
them under the assumption that their communications are at least as
protected from surveillance as anything they might say over the phone
or at a meeting. It is becoming increasingly clear that the laws
enacted to deal with technological change are, at best, haphazard and
random, and that the enforcement of Constitutional guarantees as
regards electronic communication is a long way away from affording the
reasonable expectation of privacy that we all should be entitled to.	=20=


	In 1967, the Supreme Court embarked upon a major reassessment of =
its
views on wiretapping and surveillance, and decided two important
wiretapping and eavesdropping cases by holding that the Fourth
Amendment protects =93people, not places=94, and applies to those =
spheres
that a person =93seeks to preserve as private=94. The Federal Wiretap =
Act
enacted by Congress in 1968 was a response to these decisions. It
requires court orders based on probable cause, after a finding that
other investigative techniques have failed or are likely to fail, and
calls for =93minimization=94 to avoid interception of privileged
communications or of those not related to the investigation.
Unfortunately, the Act covered only =93oral=94 and =93aural=94 =
communications,
which created a number of problems as the role of electronic
communications continued to increase. Congress=92 response was not to
enlarge the scope of existing law to the new technologies, but to
enact the Electronic Communications Privacy Act (ECPA) in 1986.

	The confusing and controverted provisions of the Act have
increasingly been used by agencies to introduce new surveillance
technologies with decreasing regard for constitutional safeguards. The
ECPA provides separate sections for communications in transit, stored
communications and data, and =93pen registers=94 (information =
identifying
the sender and recipient, web site addresses, and other identifying
information). Because each of these has different standards for
judicial authorization and enforcement, including weakened
exclusionary rule provisions, authorities can choose to intercept
messages not =93in transit=94, but rather when they are stored at an ISP
database, therefore avoiding many restrictions. With very little
judicial supervision, they may learn the identities of anyone=92s e-mail
contacts or identify every website a person visits. One court even
struggled with whether the FBI was entitled to install a device to
track one=92s keystrokes to decipher a password, so long as it refrained
from activating it while the computer was actually transmitting data.

	To a large degree one=92s identity is today defined by those =
with whom
one chooses to associate and communicate with, and by the things that
can be found inside one=92s computer drive. It is unlikely that a
determination of whether a communication must be =93in transmission=94 =
or
not for it to be subject to seizure is going to determine whether one
chooses to engage in it or refrain form it. If the Supreme Court in
1958 did not think that the government of Alabama was entitled to
obtain a list of the local members of the NAACP on the grounds that
this could inadvertently cause it to violate those members=92 freedom of
association, should we not be entitled to some skepticism today about
the legitimacy of government=92s right to access our contact addresses
and website visits?


Additional Sources:


Barrett, Gwynne B., <italic>The Law of Diminishing Privacy Rights:
Encryption Escrow and the Dilution of Associational Freedoms in
Cyberspace</italic>, 15 N.Y.L. Sch. J. Hum. Rts. 115 (1998).


Deirdre K. Mulligan, <italic>Reasonable Expectations in Electronic
Communications: A Critical Perspective on the Electronic
Communications Privacy Act</italic>, 72 Geo. Wash. L. Rev. 1557 (2004).


Eichenlaub, Frank J., <italic>Carnivore: Taking a Bite Out of the
Fourth Amendment?</italic> 80 N.C.L. Rev. 315 (2001).


Snyder, Tom D., <italic>A Requiem for Client Confidentiality?: An
Examination of Recent Foreign and Domestic Events and their Impact on
the Attorney-Client Privilege</italic>, 50 Loy. L. Rev. 439 (2004).


Solove, Daniel J., <italic>The Future of Internet Surveillance Law: A
Symposium to Discuss Internet Surveillance, Privacy & The USA PATRIOT
Act: Surveillance Law: Reshaping the Framework</italic>, 72 Geo. Wash.
L. Rev. 1264 (2004).

</fontfamily></excerpt>=

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