Kannon Shanmugam was messing around with his Google account the other day when he learned about a function that shows users where and when their email was accessed in recent weeks.
“I’ve been to a lot of interesting places,” Shanmugam, a Williams & Connolly partner, recalled. He added, confidently, “there was not some Chinese hacker accessing my account.”
Shanmugam, who practices in U.S. Supreme Court and appellate litigation, spoke about this discovery at a recent panel discussion looking at how Congress, the courts and law enforcement agencies are grappling with the divide between keeping people safe and protecting individual privacy.
The panelists, who included Janet Fisher, general counsel of the House Intelligence Committee, and Clifford Fishman, a professor at the Catholic University of America Columbus School of Law, rooted the discussion around the Supreme Court’s decision in U.S. v. Jones, the GPS tracking device case, and its implications for privacy law.
Shanmugam said “the amount of information that is out there is astonishing.” There’s a heightened sensitivity now, more than ever, to the amount of information that people are exposing in day-to-day life, Shanmugam said at the panel talk, held by Catholic University.
Scandal ‘drives this home’
“I actually think that the current scandal involving General [David] Petraeus, to me, kind of drives home this home—every day when you read about the information that the FBI obtained and how they were able to link up…a Gmail account to particular computers,” Shanmugam said at the Nov. 15 panel. Shanmugam’s colleague, Robert Barnett, now represents Petraeus.
The panelists, who also included former Maryland state appellate judge Joseph Murphy Jr. and Anne McKenna, a Baltimore-based partner at Silverman Thompson Slutkin & White, delved into a range of topics—from the government’s interest in facial recognition to issues about whether the younger generation has shown it’s less interested in the protection of privacy.
“It will be interesting to see to what extent the sort of generational issue colors the way Congress and courts go about analyzing this,” Shanmugam said.
Fisher, the House intelligence general counsel, spoke at length about the challenges facing members of Congress as they try to craft legislation addressing law enforcement surveillance tools and for the protection of privacy.
“You are trying to legislate for all time not knowing what’s coming down the pipeline. Bad guys are going to use the new technology,” said Fisher, who formerly worked at Williams & Connolly and at the U.S. Justice Department. “We don’t want a world where all bets are off and everybody can be tracked wherever they are. There’s no easy solution.”
Potential for state, federal conflict
Murphy, who heads the dispute resolution practice Silverman, highlighted the potential for a growing conflict between state and federal law in the coming years as state lawmakers craft ways to protect privacy.
“State legislators are often very interested in the area of privacy and want to do something to protect their citizens from overreaching intrusion,” Murphy said. “Not necessarily over-reaching governmental intrusion but over-reaching intrusion by other private parties.”
McKenna said at one point that “there is no privacy unless there’s going to be legislation.” She detailed efforts in Europe to restrict private companies’ use of consumer data.
Fishman, who teaches criminal law and has written about surveillance in the Internet age, said he doesn’t use a smartphone. And he’s declined to register his subway card because he doesn’t want Washington’s public transportation system to have a record of every station he’s visited.
Fishman also had this advice. “I tell my students don’t put anything in an e-mail you wouldn’t be willing to see on the front page of the Metro section,” he said. “If you become caught up in a scandal, however innocently, everything about you becomes public.”
Mike Scarcella writes for The Blog of Legal Times, a Daily Report affiliate.