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April 15, 2014 at 6:27 PM

Brad Smith, Rep. Suzan DelBene, and ACLU rep discuss NSA and privacy

Reining in the National Security Agency, keeping laws and civil rights protections up to date with the digital era, and the tension between national security and personal privacy were among the topics of a panel discussion held this morning at the University of Washington School of Law.

U.S. Rep. Suzan DelBene, D-Medina; Brad Smith, Microsoft’s general counsel; and Gabe Rottman, national office legislative counsel for the American Civil Liberties Union, participated in the panel moderated by UW Law Professor William Covington.

The discussion began with a question about what the panelists think are the current challenges regarding privacy rights.

Smith said the tension between national security and personal privacy is something the U.S. has grappled with at various points in its history, including when President Abraham Lincoln suspended habeas corpus during the Civil War and when President Franklin Roosevelt interned Japanese Americans during World War II.

But what’s different now, Smith said, is that the war on terror feels more permanent and, because of that, “we have to come to terms with a longer lasting approach.”

What’s also different, he said, is that people have more information about themselves stored in other places than ever before.

DelBene talked about how the laws regarding privacy rights are “out of date with technology.”

For instance, DelBene, a member of the House Judiciary Committee, noted that the Electronic Communications Privacy Act did not hold digital information stored in the cloud to the same warrant standard as a piece of paper sitting in a person’s desk drawer.

“That difference alone shows you that the world has changed a lot; the law hasn’t kept up with that,” said DelBene, who co-sponsored a bill to modernize the act. “People assume that we have certain rights based on property that may be different now in a digital world.”

Rottman talked about the government’s centralized power and secrecy: “The government has been able to engage in bulk surveillance backed by secret legal reasoning,” he said. “Those two things have created a toxic mix.”

In addition, he said, people now produce so much more information about themselves that travel over networks and over which they have less control than before. The result is a fundamental change  from surveillance based on “individualized suspicion of wrongdoing to programmatic surveillance where the government collects all the information and analyzes it, looking for the proverbial needle in a haystack,” Rottman said. “Ending programmatic surveillance is the most important thing to do.”

To address some of those challenges, Smith advocated changing public policy and law to end the government’s bulk collection of data, reform the Foreign Intelligence Surveillance Court (FISC) and to increase transparency on the general type of information the government is seeking from companies. He also called for new international agreements, given that data now flows across borders and law enforcement need legal processes that work across countries.

And companies themselves need to take steps to protect its customers, such as increasing encryption “to protect the hacking of data outside of the legal process,” Smith said.

A Washington Post story that ran last October about how the NSA had broken into Google’s and Yahoo’s private networks “sent an earthquake through the tech sector,” he said.

The tech companies, which had previously assumed the government sought information from the companies only through legal means, now questioned “what other means are being employed outside the legal process,” Smith said. “I don’t think the tech sector is going to feel good about the resolution of these issues until it is clear that the U.S. government is going to stop seeking to hack its way into the datacenters or cables of U.S. companies.”

Smith also assailed the secrecy of FISA court.

Generally, in the U.S., court proceedings are open to the public, with sensitive information filed under seal if necessary, he said. Also, in general, each side in a case usually knows what the other side is arguing and telling the judge.

“In this case, we have an entire court that operates in secret,” Smith said, adding that “when we’ve found ourselves before the FISA court, we have sometimes found that the government’s own briefs have been so heavily redacted that we ourselves do not know what they are arguing.”

DelBene advocated for the USA Freedom Act, which seeks to end the bulk collection of communication records, increase the transparency of the FISA court, allow Internet and telecom companies to disclose more information about law enforcement requests they receive, and create a public advocate position before the FISA court.

She also stressed the need to update laws related to electronic communications, and the need to create a warrant standard not just for electronic communication, but also geolocation information.

“Stay engaged, be part of the process,” she said.

Smith said that throughout U.S. history, Americans have always been able to adapt to change while preserving freedoms guaranteed in the Constitution and Bill of Rights.

How to do so now, amidst the fight against terrorism and in a digital age, he said, “will be one of the defining issues of our time.”

Comments | More in Microsoft | Topics: nsa, privacy


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