- The Washington Times - Tuesday, September 14, 2010

As a presidential candidate, Barack Obama pledged to “strengthen privacy protections for the digital age,” but the American Civil Liberties Union on Sept. 8 blasted out an e-mail questioning President Obama’s commitment. “But now, the Obama administration is proposing its own changes to [the Electronic Communications Privacy Act] aimed at weakening - not strengthening - your personal privacy,” ACLU Executive Director Anthony D. Romero wrote.

At issue is an administration plan to expand the use of so-called national security letters to obtain - without a warrant or judicial oversight - transaction records for electronic communications. A similar request for telephone records would tell you what numbers, and when, a person may have dialed. Internet service provider records are more revealing, telling officials the addresses of each website a person might visit. “The distinction between content and transactional records is breaking down,” ACLU Legislative Counsel Christopher Calabrese told The Washington Times in an interview.

Although many are willing to give agencies engaged in counterterrorism the benefit of the doubt, an internal Justice Department review in 2007 found 634 violations of national-security letter policy, including officials issuing letters without authority asking for information not permitted under the law. In 33 cases, letters were issued to obtain credit reports for people who were not suspects in any case related to international terrorism.

Such misuse is a concern with other privacy-invading technologies that have flourished in the absence of legal guidance. The Department of Homeland Security, for example, has ramped up its use of pornographic body scanners at airports, ostensibly peering through the clothing of passengers to uncover concealed bombs. In May, a Transportation Security Administration (TSA) employee at Miami International Airport sparked a fistfight when he mocked the naked image of a co-worker who had passed through the device, instantly justifying the public’s fear of the peeping Tom strip-search machines.

While preventing a hijacking is obviously a worthy goal, there’s no legitimate reason for Department of Homeland Security bureaucrats to confiscate and search the cell phones, laptops and other electronic devices of random travelers who just happen to be on an international flight. Documents show there were 6,671 such electronic fishing expeditions between Oct. 1, 2008, and June 2, 2010. No specific law governs these scanners or agency use of automated license-plate readers and cell-phone GPS information to record the movements of individuals. “It is now technologically possible to track everyone all the time, essentially,” Mr. Calabrese said. “Congress needs to recognize that new reality and treat this information as private.”

Even adopting ironclad privacy regulations wouldn’t solve the problem. The government has a long track record of losing and exposing the sensitive information it collects. Last month, the Homeland Security inspector general found the department’s own cybersecurity division suffered from “high-risk” vulnerabilities and that there was insufficient attention given to ensuring unauthorized eyes were kept out of the systems.

The Senate Judiciary Committee will hold a hearing on Sept. 22 to discuss updates to electronic privacy laws. While such reforms are long overdue, they may in fact come too late.