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White House Chief of Staff John Podesta returned to some longstanding pet issues last week when he announced in a talk at the National Press Club in Washington, D.C. July 17, that the Clinton Administration is seeking reforms of the laws addressing the protection of electronic mail, as well as further liberalization of the rules governing the export of encryption technologies. Podesta, who is the co-author of a 1990 book, Protecting Electronic Messaging: A Guide to the Electronic Communications Privacy Act of 1986, was a prominent figure in Washington’s high-tech policy community before he joined the White House staff. His brother, Tony Podesta, continues to run a high-tech-oriented lobbying firm in Washington. “Today we are announcing significant new updates to our export controls,” Podesta said. “Under our new policy, American companies can export any encryption product to any end user in the European Union and eight other trading partners,” he said. “We’re also speeding up the time-to-market by eliminating the 30-day waiting period when exporting encryption goods to these countries,” Podesta said. Although initially opposed to liberalized export rules for encryption, in recent years the Clinton Administration has been inching forward toward greater liberalization of its policy. Podesta’s announcement marks yet another step toward free export of encryption-based products of American technology companies. American companies and civil liberties groups have been pressuring the administration for several years to liberalize export restrictions — the industry has wanted to reach foreign markets with strong encryption-based products, while the civil libertarians have insisted that the technology is necessary to guarantee personal privacy in an increasingly internetworked world. Podesta stressed that liberalized laws concerning encryption — a liberalization that is widely believed by industry and legal experts to be necessary if encryption products are to become widely available tools for personal and corporate security — are “only one step in building a framework of cyber-security and trust.” Podesta told reporters that advances in Internet communications have also made it necessary for an overhaul of the legal framework protecting the privacy of electronic mail. Podesta also renewed the administration’s call for new funding for research into blocking attacks on computers and networks. “We’ve proposed $90 million to help detect computer attacks, to conduct research on security technology, to hire and train more security experts, and to create an internal expert review team for non-defense agencies,” Podesta said. “Unfortunately, the Congress still refuses to appropriate one dime to put these initiatives in place,” he said. ECPA OUTDATED “We also need to keep our laws consistent with the latest advances by updating our existing communications privacy laws for the Internet age,” Podesta said. “At the heart of the issue is the Fourth Amendment, which protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” he said. Podesta noted that at the time of the passage of the Bill of Rights, a person’s private papers and communications were likely stored in the home where they were clearly subject to protections against unwarranted searches and seizures. In the 20th century, however, individual communications can be more easily captured outside the home, as when a wiretap captures a telephone conversation. “By the 1980s, Americans began using e-mail,” Podesta said, adding that in the long run “even more of our papers and effects, like word processing software and files, will be kept outside of the home.” Just as the Congress and the courts have expanded protection for telephonic conversations, he said, it is appropriate for them to recognize the need for equivalent protection of computer files and electronic mail. Podesta said the Electronic Communications Privacy Act of 1986 (ECPA), which extended some protections to electronic mail, “has become outdated by new advances in computer technology and electronic communication.” He noted that the volume of electronic mail had increased greatly — “More than 1.4 billion e-mails change hands each and every day” — and that already 2.2 million Americans send e-mail through cable modems, “a means of connection that wasn’t even considered when ECPA was written.” Podesta simultaneously stressed the need for a rationalized legislative protection scheme for e-mail, partly because of privacy concerns and partly because law enforcement investigations are hampered by the different sets of protections for communications. “ECPA was not devised to address many of the issues related to these newer, faster means of electronic communication,” he said. “It doesn’t extend the stringent [statutory] protections to the capture of e-mail that you send to your friends or business partners. It doesn’t include other important protections for electronic communications like the scope of the crimes covered . . . the need for Justice Department approval, and a statutory suppression rule for government violations.” According to Podesta, “the same communication, if sent different ways through a phone call, or a dial-up modem — is subject to different and inconsistent privacy standards.” Since “our electronic correspondence contains our most sensitive thoughts and information,” Podesta said, “shouldn’t they count, as Louis Brandeis foreshadowed more than seventy years ago, as the papers and effects mentioned in the Fourth Amendment?” LEGISLATION WOULD HARMONIZE LEGAL STANDARDS Podesta said the administration would be offering four initiatives on the legislative front to address e-mail privacy issues: 1) Amending wiretap-related statutes so that they are no longer hardware-specific but would instead apply to software that functions in the same way that wiretapping hardware does, applying “equal standards to both hardware and software surveillance.” 2) Amending the statutes so that the same protections, including the same standards and burdens of proof for would-be government surveillance operators, apply to all forms of electronic communications. (“Our proposed legislation would harmonize the legal standards that apply to law enforcement’s access to e-mails, telephone calls, and cable services,” Podesta said.) 3) Updating wiretap and “trap-and-trace” laws so that they apply the same way regardless of what kind of communications network is being used, so that law enforcement will not be hampered in investigations by irrationally inconsistent laws. Such updated laws should strike the right balance between law-enforcement and civil liberties concerns, he said. 4) Updating the Computer Fraud and Abuse Act that both (a) gives misdemeanor (rather than felony) status to small-scale computer attacks and (b) allows the aggregation of many small attacks to create felony status for the crimes, collectively. “Our proposed legislation would harmonize the legal standards that apply to law enforcement’s access to e-mails, telephone calls, and cable services,” Podesta said. “Under the current Cable Act, even where there is clear proof of serious crimes, law enforcement cannot gain access to subscriber records, unless the customer can first contest the issue in court,” he said. “With our proposal, we would retain the underlying purpose of the Cable Act to keep confidential the list of shows that a customer has watched,” Podesta said, but added that “when cable systems are used to access the Internet, we believe the rules should be the tough, but sensible standard we also support for e-mails and telephone calls.” Jim Dempsey of the Center for Democracy and Technology, who has been CDT’s point man on wiretap issues, praised the administration initiatives announced by Podesta, saying they strike the right balance between individual privacy and law-enforcement concerns. But the American Civil Liberties Union’s Barry Steinhart was more critical, saying the initiatives did not adequately address the privacy issues raised by the Federal Bureau of Investigation’s “Carnivore” system, which allows government agents to sift through large volumes of communications traffic. The ACLU has called for suspension of further use of “Carnivore.”

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