Monday, October 31, 2011

Sen. Ron Wyden wants to keep the United States from taking a step toward the totalitarian state envisioned in the novel "1984."

Wyden says privacy laws need changes

Laws do not adequately address issues created by new technology

WASHINGTON — Sen. Ron Wyden wants to keep the United States from taking a step toward the totalitarian state envisioned in the novel "1984."

The 1949 work by George Orwell depicted a society of pervasive government surveillance of citizens.

The Oregon Democrat sees that possibility in law enforcement's use of global positioning system technology. It is ubiquitous in mobile phones and other consumer electronics, including Wi-Fi-equipped laptop computers and GPS units that people purchase for their cars.

To counter the threat, Wyden has formed a bipartisan coalition to push a bill that would require federal, state and local authorities to cite probable cause before a judge and obtain a warrant before conducting GPS-enabled surveillance.

It also would require warrants before the secret placement of tracking devices on the cars of suspected terrorists and criminals.

It also prohibits businesses that possess tracking data from disclosing it to other companies without a customer's permission.

Wyden's bill takes these steps by amending the Electronic Communications Privacy Act of 1986.

Laws pertaining to geolocation, he said, have not kept pace with technology.

"This is sort of like running a technological Indianapolis 500 with rules for the horse-and-buggy era," Wyden said in an interview. "We are building on that wonderful old document known as the Constitution and the Fourth Amendment."

He emphasized that his bill would not impair law enforcement.

"The history of law enforcement," Wyden said, "is that law enforcement benefits from rules, clearly expressed rules."

A prime example, he said, is the Miranda warning that police must give to criminal suspects in custody, informing them of their rights.

Wyden himself said 25 years "can seem like a lifetime when it comes to technology."

His drive has gained considerable momentum in the past week.

Sen. Mark Kirk, R-Ill., has joined Rep. Jason Chaffetz, R-Utah, as co-sponsors in the Senate and House. Also backing the measure is Rep. Robert Goodlatte, R-Va., the chairman of the House Judiciary subcommittee on Internet issues.

In addition, a diverse coalition of interest groups ranging from the American Civil Liberties Union to the conservative Competitive Enterprise Institute supported the Oregon senator at a press conference last week and stressed the urgency of the legislation.

"Tracking our movements without warrants or probable cause is a massive privacy violation," the ACLU representative said in a statement.

Trade groups representing affected technology companies added their support.

"It balances Americans' privacy protections with the legitimate needs of law enforcement," the Computer and Communications Industry Association said in its statement.

Despite the endorsements, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., will be key to moving the bill forward. His office said this week that he has yet to announce a position.

Goodlatte, though, has promised a hearing in the House.

Further, the Obama administration opposes a warrant requirement, a position that Wyden labels "a strong difference of opinion."

The issue of GPS tracking is at the center of a case before the Supreme Court: United States of America v. Antoine Jones, which is scheduled for oral arguments Nov. 8.

It involves the tracking of a drug-trafficking suspect in the Washington, D.C., area.

At issue are the protections against unlawful search and seizure in the Fourth Amendment.

The administration, in a filing with the court, said requiring a warrant contradicts "longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if 'scientific enhancements' allow police to observe this public information more efficiently."

In other words, critics of the warrant requirement argue, there is little difference between police using GPS and trailing a suspect in a car.

So far, other federal and state courts, as well as state legislatures, have come to a hodgepodge of conclusions about the matter.

Seven states have laws requiring warrants for GPS-related tracking.

However, the 9th U.S. Circuit Court of Appeals in San Francisco, usually regarded as liberal, refused to reconsider the case of a suspect tracked without a warrant. But it was not without vigorous dissent from some of its members.

If such rulings continue, Chief Judge Alex Kozinski warned, "Some day soon, we may wake up and find we're living in Oceania" — a reference to Orwell's fictional totalitarian state.

Wyden says privacy laws need changes | Statesman Journal |

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