Mr. David W. Beier, III, Esq. October 22, 1985 Page Two Should you have any further need for my assistance, please let me know. DJM:bsr Very truly yours, Douglass & McColum Douglass J. McCollum Wayne Allcott, U S WEST Washington Office, suggested that I send to you some comments prior to our pending meeting at 10:30 a.m. on Friday, October 11. First, let me say that I think that the bill is in reasonably good condition, from the standpoint of an operating telephone company. I look forward to meeting you and your staff, however, because I assume that there will be ongoing changes which may require some further communication by mail or telephone. My comments refer to the discussion draft dated 12 September 1985, in the event that there were further changes prior to introduction. On page 3, lines 21-23, provision (i) appears to be incomplete; I do not understand it as it is written. In the same vein, on page 21, lines 19-22, there is used the term "physical entry. There is no previous reference in Section 3125, however, to "physical entry. I suspect that that language was lifted from a previous section, such as on page 12, lines 9-12, without any preliminary material. There are two exceptions for providers: page 3, beginning on line 24 through line 2 on page 4; and page 14, lines 9-13. I merely raise the question whether it would be helpful if there were language relating these two - 2 The provision which we are most concerned about is the matter of assistance in an emergency situation (page 21, lines 16-18). While the number of persons so authorized appears to be small, it puts the telephone company in the position of having to decide whether there is an emergency justifying assistance without a court order. Our concern is deepened by the fact that the exception to the recovery of civil damages, page 26, line 25 through line 2 on page 27, does not include good faith reliance in complying with Section 3125 (a) (2). The communications common carrier or other provider should not be put in the position of assuming the risk of complying with the assertion of a law enforcement officer that such an emergency exists, only to find later in litigation that no such emergency did exist pursuant to the statute. While I am not quite sure how to correct the situation, if the provision is to remain, at a minimum there should be a good faith reliance exception. Perhaps Section 3128 (c) could be broadened to cover that situation. I'll be happy to discuss these and any other items in the bill with you when we meet on October 11. Yours very truly, Warren G. Austin General Attorney RE: New Forms of Communication: Are They Protected by Law? Introduction On June 12, 1984 the American Civil Liberties Union (ACLU) and the Public Interest Computer Association (PICA) held the first of a series of planned consultations in Washington D.C to explore privacy issues posed by the rapid development of new communications and computer technologies. The day-long conference, which brought together privacy and technology experts from the private sector and from congressional committees, was devoted to a discussion of new communications technologies and whether they are protected by current law from unauthorized interception. This Memorandum is a summary of the discussion. (See Appendix A for List of Attendees.) Overview of the Project Before turning to topic of discussion, Jerry J. Berman, ACLU Legislative Counsel and Director of the ACLU Privacy and Technology Project, provided an overview of the Project and its goals: The core assumption of the Project is that the revolution in new communications and computer technologies is undermining the fragile privacy protections embodied in law and that new laws and institutional arrangements are necessary. To cite a few examples: --Government and business, for public policy and commercial purposes, increasingly use new computer technology to create data bases of personal information which can easily be accessed, shared, matched, merged and disseminated. The courts, however, have not recognized a right of privacy in records held by third parties. The Privacy Act of 1974, designed to give citizens some control over the use of this information and to require citizen consent before information collected for one purpose can be used for another, has proved ineffective because of technological change, legal interpretation, exemptions, and inadequate safeguards. The Privacy Act of 1974 protects "systems of records" but personal data can be amassed by accessing computer data bases which are increasingly not indexed as individual systems of records. The "Routine Use" exception in the Privacy Act has been interpreted to permit rather than inhibit "computer matching" of different data bases by the government to detect fraud and abuse. The technological capacity to bring together diverse data bases of personal information amounts to the creation of a de facto "National Data Center" despite considerable opposition to this concept only a decade ago. For --The new technology is creating new data bases of personal information that are unprotected by current law. example, there are few state laws, and no federal law, protecting sensitive cable subscriber information, interactive cable functions, or consumer transactions via cable systems. The legal status of personal information in the possession of electronic mail companies is in doubt and the Right to Financial Privacy Act creates no right of privacy for electronic funds transfers. --A decade ago, Congress barred the FBI's National Crime Information Center (NCIC) from engaging in "message switching" arrest records between states and completing a centralized bank of arrest records to serve the states because of fears that it would create a national police and give the FBI too much power over local law enforcement. There was also concern that too many arrest records (more than 50%) were inaccurate and incomplete and could adversely affect citizens' due process rights and employment opportunities. Today, the FBI is implementing a "decentralized" system which permits the states to hold their own records but advanced computer technology makes it possible for the FBI to compile any citizen's arrest record from one or several states in less than a minute. Little has been done to ensure that records exchanged are accurate or complete. --A decade ago, the FBI used the NCIC system to keep track of anti-war and civil rights activists. Public revelation of the "Stop Index" brought it to a halt. But last year, the FBI added a similar index to the NCIC system to keep track of persons considered "dangerous" to Secret Service Protectees. without statutory authorization or legislated standards. The FBI is actively considering other indexes based on investigative and intelligence "non public record information" for inclusion in NCIC, including a terrorist index and organized crime "associates" list. Thus, the NCIC, a national computer network connected to 40,000 criminal justice agencies, is being transformed into a law enforcement intelligence and surveillance system. |