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Declan McCullaghDeclan McCullaghis the chief political correspondent for CNET. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other Peoples Money column for CBS News Web site.
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Only now, nearly a decade later, does the political pendulum appear to be swinging back to vor privacy. Its being driven by concerns overmobile device tracking,government access to data,airport body scanners--and the Patriot Act itself. Concerns aboutFacebook privacyandWeb securityhave probably helped. (The ACLUhas documentedwhat it calls widespread abuses of the 2001 law.)
Attorneys at the Department of Justice had spent years drafting the so-called Enhancement of Privacy and Public Safety in Cyberspace Act (PDF), which goes by the awkward and not very memorable acronym of EPPSCA. The Clinton administration forwarded EPPSCA to Congress in July 2000, where it wasintroducedby Sen. Patrick Leahy (D-Vt.) and met with a generally chilly response.
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EPPSCA was designed to give police more authority to conduct Internet surveillance, not thwart terrorists armed with box cutters. In a July 2000speechat the National Press Club on the day the administration sent EPPSCA to Capitol Hill, White House Chief of Staff John Podesta included only a single reference to cyber-terrorism, and nothing about the non-cyber sort.
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In the decades prior to the 9/11 attacks, the FBI generally specialized in targeted surveillance, while the NSA tended to conduct wholesale surveillance of non-Americans.
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Industry and civil liberties groups are better organized than they were a decade or so ago. Last year, Apple, Amazon.com, Google, Facebook, IBM, Americans for Tax Reform, the Electronic Frontier Foundation, and otherscreated a coalitionto lobby Congress into enacting some of the same privacy protections that almost became law in 2000, including requiring a warrant to read e-mail or tracking someones location. (CNETdisclosedthat police were engaging in warrantless tracking of cell phones.)
When the final vote on the Patriot Act was held the following month, members of Congress were required to vote on the bill without time to read it. The measure has been debated in the most undemocratic way possible, and it is not worthy of this institution, Rep. Barney Frank, D-Mass., said at the time. Rep. Ron Paul, R-Texas, added later: Almost all significant legislation since 9/11 has been rushed through in a tone of urgency with reference to the tragedy.
After the attacks on the Pentagon and World Trade Center, however, the sentiment in political circles quickly shifted from protecting electronic privacy to cilitating government surveillance. The privacy bill approved by the committee by such a lopsided margin disappeared. Bachus not only voted for the Patriot Act, but he ended upwriting part of it.
This was the first Congress that took privacy seriously, Iwroteat the end of 2000, noting that a privacy caucus had formed that year. A consensus seemed to be coalescing around protecting Americans electronic privacy, coupled withsharp criticismof the FBIs Carnivore wiretapping tool, Byzantine U.S. encryption regulations, and the shadowy surveillance system that became known asEchelon.
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Says Bankston, the EFF attorney, on increased surveillance: It isnt us safer. Instead, its adding more hay to the haystack and it harder for us to find the needle.
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Other politicians shared his sentiments. The Justice Department really does want to use cell phones as a tracking device, and that worries a lot of people, said then-Rep. Bob Barr, a Georgia Republican, in September 2000. A year later, Barr voted for the Patriot Act (thoughlater said he regretted itand seems to have experienced acomplete change of heart).
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Youve got personal information scattered all over the Web and in company databases. But how private is your private information, and how much does everyone else know about you? CNETs Declan McCullagh and others keep you in the loop.
It was not that long ago that U.S. congressman Spencer Bachus, a conservative Republican from Alabama, was defending Americans right to privacy against overreaching government surveillance.
Perhaps the biggest systemic change in the way the government conducts investigations since 9/11 is the transition from targeted surveillance--where the government picks a target and spies on that person--to untargeted wholesale surveillance, where masses of people are surveilled, saysKevin Bankston, a senior staff attorney at theElectronic Frontier Foundation. And then the government decides who it wants to focus on.
Leahy himselfsaid, referring to his own bill, that while portions seemed reasonable, the merits of other provisions in this legislation would benefit from additional scrutiny and debate.
Handicapping where this process will lead is difficult, but its ir to say thatprivacy interest is growing, and fears about terrorism are being evaluated in a broader perspective (yourefour times more likelyto be killed by lightning than by a terrorist, for instance).
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Soon afterward, that House of Representatives committee took the unprecedented step of voting, by a 20-1 margin, torequire police to obtain a warrant from a judgebefore e-mail could be read or mobile phones could be tracked. The legislation evenspecifiedthat police couldnt use illegally obtained electronic communications as evidence in court.
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On the other hand, the FBI and other police agencies arent exactly eager to relinquish their expanded authority. In April, the Justice Departmentoutlinedwhat amounts to a frontal attack on the coalition, saying its proposals would have an adverse impact on criminal investigations. Making location information only available with a search warrant, James Baker, an associate deputy attorney general, told Congress, would hinder the governments ability to obtain important information in investigations of serious crimes. A DOJ-backeddata retention billwas approved by a House committee.
After September 2001, however, the NSAs electronic ear turned inward. In his book titled State of War, New York Times reporter James Risen says the NSA has extremely close relationships with both the telecommunications and computer industries. The Los Angeles Times reported that AT&T has opened its customer information database to the NSA. And USA Todayreportedthat the NSA has been secretly collecting the phone call records of tens of millions of Americans from AT&T, Verizon, and BellSouth.
But within hours of the 9/11 attacks, the Justice Department had dusted off EPPSCA as a way to respond to bin Laden. On September 13, 2001, two days after the worst terrorist attack in U.S. history, the U.S. SenateapprovedtheCombating Terrorism Act of 2001, which includes portions copied word-for-word directly from EPPSCA.
Over the next 45 days, the Combating Terrorism Act of 2001 morphed into thePatriot Act, which was broadened to address unrelated topics such as immigration and financial institutions. Portions of EPPSCA survived verbatim.
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Whats not as well known is how much of the preparatory work for that shift toward greater surveillance had begun long before September 2011.
How 9/11 attacks reshaped U.S. privacy debate,Technology has outrun the law, Bachus said during a July 2000 hearing. He wondered: What level of monitoring do we, as a country, want to have on private conversations?
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The high, or low, points of the next decade are well known: Theenactment of the Patriot Actcountry club hills couple slain. Thecreationof the Department of Homeland Security. The National Security Agencyswarrantless surveillance, followed byretroactive immunityfor communications companies that illegally opened their networks and a whistle-blower whooffered disturbing detailsabout the depth of AT&Ts involvement.
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Geek Gestalt
Accelerating this process arewarnings from U.S. senatorsthat the Justice Department has twisted the Patriot Act into a secret surveillance mechanism r broader than Americans realize. I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms too, Sen. Ron Wyden, an Oregon Democrat who tried to block the laws renewal, said in May. Sen. Mark Udall, a Colorado Democrat, offered a similar warning.
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