Federal laws prohibit interception of private mail, eavesdropping on private telephone conversations and search of private property without a warrant. However, federal authorities in Detroit tried to seize computer mail, police in Rhode Island used FM radios to eavesdrop on cordless telephone conversations, and Army investigators at the Pentagon opened and examined the personal computer files of government employees.
None of these investigators had a warrant, nor did they violate any law.
Technology--responsible for such innovations as personal computers, electronic data transmissions, telephones without wires and miniature television cameras--has created an array of loopholes in the laws of privacy.
Concern about the loopholes has prompted a California assemblywoman to introduce bills that could make California the first state to extend privacy protection to all electronic communications; Congress has directed its Office of Technology Assessment to investigate technology’s effect on civil liberties, and several members of the House and Senate are proposing legislation that would adapt provisions in the Bill of Rights to the computer age.
“Technology leaps ahead, and the law stands still,” Sen. Patrick J. Leahy (D-Vt.) said. “Technology eats away at what we assume are our protections in the Constitution. . . . Within a decade, our privacy is going to be as rare a commodity as the old hand-cranked telephone.”
‘The Right Most Valued’
The right to privacy--what former U.S. Supreme Court Justice Louis Brandeis once called “the right most valued by civilized man"--may have been a simpler issue when locked doors were adequate protection.
But in a day when information increasingly is being stored electronically, when corporate and personal communications are being exchanged via computer, when television cameras are so small that they can be hidden, it is clear that the day Brandeis foresaw in 1928 has arrived:
“Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home,” he wrote.
Improved video technology, for example, has generated legal disputes because neither the Founding Fathers nor more contemporary lawmakers anticipated the possibility that anyone could one day conceal television cameras in private homes.
Federal wiretap laws assert strict controls over installation of electronic bugging devices in private dwellings, but there are no provisions regulating similar installation of concealed television cameras--technology that an appeals court acknowledged is “menacing to personal privacy.” When the wiretap law was passed in 1968, TV cameras were too bulky to be considered potential tools of surveillance on private property.
In the summer of 1983, federal investigators in Chicago sought a warrant to install miniature TV cameras in a home where they suspected the Puerto Rican terrorist organization FALN was making bombs.
Tapes’ Use Banned
A federal judge granted the warrant, and the hidden cameras recorded 130 hours of videotape in the house before four persons were arrested. However, U.S. District Judge George N. Leighton banned the tapes’ use at trial on grounds that video surveillance violates Fourth Amendment protections against unreasonable search and seizure. “The home is a sacred place in this country,” Leighton said.
Last December, the U.S. 7th Circuit Court of Appeals reversed Leighton’s ruling, arguing that “there is no right to be let alone while assembling bombs in a safe house.” The issue is under appeal.
In Washington, Rep. Robert W. Kastenmeier (D-Wis.), chairman of a House subcommittee on civil liberties and administration of justice, promises to reintroduce legislation this year that would make the legal requirements for video surveillance more stringent than for electronic wiretaps.
“Law enforcement will have to prove there is no other alternative--not just that video surveillance is the most efficient way to investigate,” Kastenmeier said.
It is not only the government that has had its snooping ability enhanced by new technology.
In Lockport, N.Y., a man feuding with a neighbor over property rights-of-way taped his neighbor’s cordless telephone conversations by intercepting them over a simple FM radio. The Niagara County district attorney filed criminal wiretap charges, but a local judge dismissed them.
“It was the court’s opinion that cordless telephones are like CB radios,” Claude Joerg, assistant district attorney, said. “Anyone can listen to them.”
That was the ruling also of the Rhode Island Supreme Court when it permitted Woonsocket police to use as evidence tape recordings of cordless telephone conversations relating to alleged drug trafficking. Authorities recorded the calls without a warrant after a neighbor reported hearing “suspicious conversations” over her FM radio.
“My client had an expectation of privacy, and so did everyone who talked on the phone with him,” said Mark Smith, defense attorney for the cordless phone user, who is awaiting trial on narcotics charges.
Not even the more sophisticated cellular--or radio--telephones are entirely secure. A company in Indiana that sells police scanners also markets a radio scanner that picks up cellular phone conversations--"conversations that offer more real-life intrigue than most soap operas,” one of its ads claims.
Phone Protection Sought
Such equipment illustrates a privacy loophole that groups such as the Cellular Communications Industry Assn. want closed. Stephen Schachman, a spokesman for the Washington-based association, told a Senate Judiciary subcommittee last fall that the industry wants federal laws to protect radio phones from unlawful interception and restrict the manufacture, sale and possession of interception devices such as scanners.
Cellular and traditional telephones transmit more than voices today. Computer data ranging from written messages between friends to sensitive medical and financial information--all of it broken down into computer-coded digital patterns--is constantly being sent over the phone system by individuals, corporations and government.
Although wiretap laws prohibit interception of voice communications without a warrant, restrictions on interception of data transmissions are “not always clear or obvious,” the Justice Department acknowledged in a report to Congress. One problem is that federal wiretap statutes refer specifically to the “aural acquisition” of information during a “wire” transmission over government-regulated telephone systems.
However, digitalized data transmissions cannot be overheard, and an increasing number of telephone calls are being transmitted, not over wires, but via microwave towers and satellites by deregulated, private telephone companies.
The current law may not protect against “overzealous law enforcement officers or private snoops,” Sen. Charles McC. Mathias Jr. (R-Md.) contends.
Rand Corp. executive Willis H. Ware, appointed to the Privacy Protection Study Commission after Congress passed the Privacy Act of 1974, said that data transmissions have almost no protection from private interception.
“If you want to intercept someone’s data, you can do it right now--it’s wide open, as far as privacy laws are concerned,” Ware said.
“Anyone having access to such a body of information might as well have the key to the office and to its file cabinets,” he earlier told a House hearing.
It is all but impossible to know whether data has been intercepted. A computer snoop can read and make copies of information without leaving any electronic fingerprints.
In San Francisco last February, the public defender’s office, tipped off by an unidentified source, went to court complaining that its computer files had been improperly searched three months earlier by a San Francisco police officer.
Had Unlimited Access
The officer--a lieutenant assigned to manage the multimillion-dollar computer system that is shared by the police, public defender, district attorney, sheriff, office of civilian complaints and county coroner--had obtained unlimited access to all computer files in an attempt to investigate improper personal uses of the computer by a government employee. While doing so, he printed out a 37-page index of every document filed in the system.
“This demonstrates what can happen in the computer age,” Peter Keane, an assistant public defender, said. “There’s no longer a need for someone to break into an office at 3 a.m.--doing a ‘black bag job’ like in the Watergate (burglary). Now the burglar can sit in the safety and convenience of his own office, using his hot little fingers to punch out the proper access codes.”
Attorneys from the public defender’s office argued that criminal charges against several defendants--including a mass murder suspect--should be dropped because the electronic intrusion violated attorney-client privileges. Judge Laurence Kay dismissed those motions, but he called the police officer unqualified to manage the computer system.
As for the inquiry that precipitated the comprehensive search of San Francisco’s computer system, investigators found that a police officer had been using the government’s computer to keep some records for his wife’s church charity.
Contributing to the legal confusion over access to computer data is the largely unresolved question of who owns the information in a computer. It is similar to the question of who owns the contents of an employee’s locked desk drawer, the employee or the boss?
Personal Use Monitored
The Army has taken the position that the contents of its computer belong to the Army. Army investigators monitoring the personal use of a Pentagon computer made periodic examinations of hundreds of employee computer files. According to published accounts, the Army found little purely personal information except for a baby sitter’s phone number and a recipe.
Larry Layten, a civilian computer expert with the Army’s Materiel Development and Readiness Command, published his concerns about such investigations in a message he sent out over a national electronic mail system.
“If, in fact, the owner of a computer system has the right to search (in witch hunt fashion) through all the files . . . then I . . . will refrain from using the system as I have in the past: as a note pad, telephone replacement, sounding board for ideas, etc.,” Layten said.
Barry Trilling, a Washington attorney who represents federal employees, called the random review of computer documents “a threat to the rights of employees (that), taken to extremes, borders on thought control.”
The question of data ownership was a central issue in the case of Leo Radosta of Detroit, a cocaine dealer who relied heavily on an electronic mail service to which he subscribed to relay information throughout his narcotics distribution network in Michigan and Florida.
Electronic Mail Dispute
Assistant U.S. Atty. Thomas Ziolkowski attempted to seize the electronic mail messages with a subpoena served on the commercial electronic mail company, Source Telecomputing of McLean, Va., a subsidiary of Reader’s Digest. Ziolkowski argued that backup copies of customer messages kept on computer tapes by Source Telecomputing were no more protected by privacy laws than are carbon copies of business letters kept in a corporation’s file.
Radosta and Source Telecomputing fought the subpoena. Attorneys for the company argued that compliance would cause “the complete destruction of the expectation of privacy” by its customers. Because Radosta pleaded guilty, the federal court in Michigan did not resolve the dispute.
Although not a party to the legal battle, the American Civil Liberties Union supports the privacy position of Source Telecomputing. Jerry Berman, director of the ACLU’s technology and privacy project in Washington, called the Michigan subpoena attempt an “abuse of a technology loophole.”
A California constitutional amendment, proposed this year by Assemblywoman Gwen Moore (D-Los Angeles), would extend constitutional search and seizure protection “to electronic information systems and data bases.” The proposal, which is scheduled for committee hearings later this month, also would “guarantee the right to electronically communicate on all subjects” and would prohibit laws abridging “liberty of electronic communications.”
“In the future, all of our information systems will be electronic, and we want the same protections for those files as for personal papers in a file cabinet,” Moore said.
While endorsing such efforts to increase the general security of electronic information, Michael Cavanagh, executive director of the Electronic Mail Assn. in Washington, argued that electronic communications are more private than other forms.
“In most places, you won’t find locks on mail boxes. They’re vulnerable. And letters can be opened with steam from a teapot,” Cavanagh said. “Anyone who tries to snoop into electronic mail is going to need something a lot more sophisticated than a teapot.”