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The issue of online privacy in the Internet age found new urgency following the Sept. 11 terrorist attacks, sparking debate over striking the correct balance between protecting civil liberties and attempting to prevent another tragic terrorist act. While preventing terrorism certainly is of paramount importance, privacy rights should not be deemed irrelevant. QUICK ACTION In response to the attacks, Congress quickly passed legislation that included provisions expanding rights of investigators to intercept wire, oral and electronic communications of alleged hackers and terrorists. Civil liberties groups expressed concern over the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), and urged caution in ensuring that efforts to protect our nation do not result in broad government authority to erode privacy rights of U.S. citizens. Nevertheless, causing further concern to civil liberties groups, the Department of Justice proposed exceptions to the attorney-client privilege. On Oct. 30, Attorney General John Ashcroft approved an interim agency rule that would permit federal prison authorities to monitor wire and electronic communications between lawyers and their clients in federal custody, including those who have been detained but not charged with any crime, whenever surveillance is deemed necessary to prevent violence or terrorism. In light of this broadening effort to reach into communications that were previously believed to be “off-limits,” the issue of online privacy is now an even more pressing concern. AN ONGOING CONCERN Contrary to popular belief, the U.S. Constitution does not generally guarantee personal privacy. Rather than attempt to address that problem, however, Congress had espoused industry “self-regulation” during the Clinton administration as a solution to privacy concerns. Unfortunately, some privacy certification programs were criticized for failing adequately to enforce privacy compliance. Meanwhile, for several years in a row, FTC surveys have shown poor Internet privacy protection by many Web sites. FEDERAL AND STATE LEGISLATION Congress has taken some legislative steps towards ensuring online privacy, including the Children’s Online Privacy Protection Act (“COPPA”), and provided privacy protections for certain sectors through legislation such as the Financial Services Modernization Act (aka “Gramm-Leach-Bliley”). The legislation passed to date does not, however, provide a statutory scheme for protecting general online consumer privacy. Lacking definitive federal law, some states passed their own measures. But much of this legislation is incomplete or not enforced. Moreover, it becomes unworkable when states create different privacy standards; the Internet does not know geographic boundaries, and companies and individuals cannot be expected to comply with differing, and at times conflicting, privacy rules. POTENTIAL FOR PROGRESS? An analysis earlier this year of 751 U.S. and international Web sites conducted by Consumers International — a London-based consortium of consumer-protection organizations — found that “most sites collect personal information but fail to tell consumers how that data will be used, how security is maintained and what rights consumers have over their own information.” At a minimum, Congress should pass legislation requiring Web sites to display privacy policies prominently, inform consumers of the methods employed to collect client data, allow customers to opt out of such data collection, and provide customer access to their own data that has already been collected. Some privacy advocates have suggested that legislation should go even further, barring cookies and Web bugs and requiring consumers to opt in before a Web site can collect personal information. Although various Internet privacy bills were introduced in the 107th Congress, the focus shifted to expanding government surveillance in the wake of the terrorist attacks. Plainly, government efforts to prevent terrorism are appropriate. Exactly how these exigent circumstances change the nature of the online privacy debate is still to be seen. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Mr. Sinrod may be reached by e-mail at [email protected]

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