ABC News reports that the next Congress and president will have to face numerous technology and privacy issues as related to Internet freedom. Such issues include government access to data and the 1986 Electronic Communications Privacy Act (“ECPA,” also known as Title 18 § 2511 of the United States Code). (There has been much discussion of revising ECPA and several bills were introduced, which are discussed in this CRS report.) There are also a variety of consumer privacy issues (for example, related to smartphone apps and targeted behavioral advertising), as well as privacy and civil liberty questions over the domestic use of aerial drones (or “unmanned aerial vehicles,” “UAVs”) and the increasing use of biometric technologies such as facial recognition systems. (See a previous post for discussions of the privacy and civil liberties issues related to drones. Also, here’s a recent CRS report (pdf) on the Fourth Amendment implications of the domestic use of drones. Note that Slate recently reported that the FBI plans to give facial recognition software to local law enforcement agencies. “Instituting the technology nationally is the latest stage in the FBI’s $1 billion Next-Generation Identification program, which will also establish a system for searching a database of scars, marks, and tattoos,” Slate reports.)
ABC News reports:
Common to both the Democratic and Republican platforms are vows to defend the Internet’s core values of openness, innovation and free expression and to resist current efforts to shift control of the Internet toward governance by an international organization. All well and good, but can partisanship be laid aside when platform platitudes are replaced by real world policy debates? [...]
The government’s ability to access our electronic communications and other private data is governed by the Electronic Communications Privacy Act (ECPA). Though ECPA was a forward-looking piece of legislation, twenty-five years ago when it passed, it’s now been overwhelmed by technological innovation. As a result, a great deal of the personal data that we store in the Internet “cloud” and with mobile providers—email, location, photos and more— is often available to the government without a probable-cause warrant. In contrast, the 4th Amendment would require a warrant for the same data stored in our desk drawers or home computers.
The difficulty in applying worn legal standards to new technologies has created uncertainty for law enforcement and the companies that hold our communications data. The courts continue to grapple with how and when the government can satisfy its insatiable appetite for access to digital communications, leading to a patchwork of conflicting judicial decisions that just add to the uncertainty. Here is where bi-partisanship can shine. [...]
The U.S. and Turkey are the only developed countries without comprehensive laws protecting consumer privacy. Instead, the U.S. has a patchwork of inconsistent, sector-specific (banking, insurance, health care, etc.) laws protecting certain categories of especially sensitive data. Everything else is left to self-restraint, voluntary industry privacy codes and the power of the Federal Trade Commission to take on unfair and deceptive business practices. In the last few years, the FTC has muscled up its oversight and enforcement actions, but the agency is constrained by its regulatory limits. [...]
The opportunity for abuse of consumer privacy is growing every day. There are tens of thousands of apps downloaded on smartphones and tablets, increasing use of facial recognition technology, license plate scanners and flying drones equipped with cameras. Each of these areas presents a special privacy challenge.
Congress has been dragging its feet on a baseline consumer privacy law for over a decade. For awhile it looked like the current Congress might get to the finish line, The Administration unveiled a “Privacy Bill of Rights” for consumers online, but the momentum faded as Washington got bogged down in election year politics. It’s an odds-on bet that the issue will resurface during the next Administration. The challenge is for lawmakers to stay focused on passing a flexible, comprehensive privacy framework that allows for innovation and meets the challenges of an increasingly complex data environment.
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