“The Blind Eye to Privacy Law Arbitrage by Google -- Broadly Threatens Respect for Privacy”

I was just sent the Testimony of Scott Cleland, President, Precursor LLC, made before the House Energy & Commerce Subcommittee on Internet Hearing, from July 17, 2008. The hearings were entitled “What Your Broadband Provider Knows About Your Web Use: Deep Packet Inspection and Communications Laws and Policies”.

Mr. Cleland termed his testimony - or more aptly, the alternative name for the hearing he suggested, was: “The Blind Eye to Privacy Law Arbitrage by Google -- Broadly Threatens Respect for Privacy”.

There's some really fascinating and disturbing arguments presented by Cleland regarding the threat to our privacy that is posed by any company that has such all encompassing and far reaching access to so many peoples private information while simultaneously demonstrating such disinterest and antipathy towards properly protecting that same information. These facts, combined with the woeful inaction and lack of oversite by our government over Google and similar company's like Yahoo, raises all kinds of serious privacy concerns, most notable of which is identity theft.

So with that, here's his entire intro, which is about a page or so. For the entire testimony click on the title below:

Testimony of Scott Cleland: “The Blind Eye to Privacy Law Arbitrage by Google -- Broadly Threatens Respect for Privacy”

I am Scott Cleland, President of Precursor LLC, an industry research and consulting firm. I am also Chairman of NetCompetition.org, a pro-competition e-forum funded by telecom, cable and wireless broadband companies.

My testimony today reflects my own personal views and not the views of any of my clients.
The current patchwork of U.S. privacy laws, the lack of a holistic approach to Internet privacy, and selective oversight of privacy problems – have combined to create perverse incentives for some companies to: arbitrage privacy laws and push the privacy envelope. As a result, invasion/abuse of privacy is among the most serious problems users face on the Internet. The lack of a holistic, comprehensive and balanced approach to privacy law and oversight is a serious threat to American’s privacy.

Broadband companies, (telecom, wireless and cable) have long been subject to strict privacy laws (sections 222, 551 & the ECPA), which created serious consequences for the misuse of personally identifiable information without a user’s permission. Consequently, broadband companies have developed extensive policies, procedures and practices to respect users’ privacy and protect personally identifiable information. This Subcommittee’s oversight of experimentation by some, with “deep packet inspection” for advertising purposes, is entirely appropriate. Existing laws appear to cover these practices so oversight by Congress is expected.

I am concerned however, that selective oversight of only broadband privacy matters fosters a blind eye to arbitrage of privacy laws by application companies like Google, Yahoo and others. This creates perverse incentives for companies not covered by U.S. privacy laws to push the envelope on privacy to gain competitive advantage. Americans’ privacy should not be an unrestricted commodity to sell to the highest bidder or to gain competitive advantage.

Specifically, I am troubled with the selective broadband focus of this hearing, because privacy is a cross-cutting, big picture issue that knows no boundaries between the access, application and content “layers’ of the Internet. To add balance and to focus on the most serious threat to Americans’ privacy, I humbly suggest the Subcommittee hold another hearing entitled: “Why Google Knows Everything About You: Unauthorized Web Surveillance and Privacy Law Arbitrage.”

By turning a blind eye to what Google, the worst privacy offender on the Internet, is doing to systematically invade and abuse Americans’ expectation of privacy, Congress is perversely encouraging copycat behavior by “deep packet inspection” advertising entrepreneurs who see that there is a huge privacy double standard to arbitrage. Companies like NebuAd are essentially just following the privacy-arbitrage leader – Google.

To illustrate my point of the extreme privacy law arbitrage that is occurring in the U.S. marketplace today, I explain in detail in my written testimony how Google is the single worst arbitrageur of privacy laws and the single biggest threat to Americans’ privacy today.

Case Study: How Google Systematically Threatens Americans’ Privacy:

1. Google’s radical “publicacy” mission is antithetical to privacy.
2. Privacy is not a priority in Google’s culture.
3. Google gives privacy “lip service.”
4. Google threatens the privacy of more people than most any other entity.
5. Google collects/stores the most potential “blackmail-able” information.
6. Google’s track record does not inspire trust.

As others have said, information is power. Power corrupts. Absolute power corrupts absolutely. Google’s market power over private information is corrupting Google, just like former FBI Director J. Edgar Hoover was corrupted by his power and mastery of personally-sensitive information. Google’s unprecedented arbitrage of privacy law combined with its exceptional lack of accountability is fast creating this era’s privacy-invading, unaccountable equivalent: “J. Edgar Google.” Remember the timeless insight, those who don’t learn from history -- are doomed to repeat it.

i will follow this issue a lot more closely in the future. For the full testimony click here.

It's a crime S.F. surveillance cameras are a flop

I can't say this should be a surprise to anyone, surveillance cameras don't work anywhere they've been used...aside from the fact they are a massive invasion of privacy of course.

It appears San Francisco's experiment with them has been an abject failure. C.W. Nevius of the Chronicle reports:

Opponents for years have complained that residents' civil liberties are violated by government oversight of cameras in crime-ridden neighborhoods. Before San Francisco's cameras went up in 2005, some compromises were brokered: The cameras would be checked only if a crime occurred nearby and they are turned off if political demonstrations are held in the area. That was before a study by UC Berkeley showed in March that the cameras had little effect on violent crime.

Some on the Board of Supervisors think - and you can hardly blame them - that the program has been such a flop that there is no need to keep sending good money after bad. Last week, the finance committee voted not to fund $200,000 this year to keep the cameras on.

...

The idea, Ryan said, would be to hire retired police officers who are familiar with police codes and procedures. Ideally, he said, the system would be linked with Shot Spotter, a new technology already being used in some neighborhoods to identify the location of gunshots immediately after a gun is fired. If a shot was fired, someone in the central command could quickly click to a camera in that area.

That, of course, raises privacy issues. Nicole Ozer of the ACLU of Northern California, said that although people think cameras will make them safer, they turn out to be "intrusive and do not prevent crime from occurring."

That begins the dueling statistics. The ACLU said Chicago, for example, actually saw an increase in its murder rate after cameras went up there; meanwhile, Chicago police reported that the cameras helped them make 1,200 arrests in less than a year and a half.

At some point the issue always comes down to how we don't want someone secretly watching us. That was a major concern - 15 years ago. Now we're on camera all day, every day.

Click here to read the article in its entirety.

ACLU Files Lawsuit Against FISA + FISA Ramfications for the Press

There's some good news and some bad news on the post-FISA front. The "good news" - and perhaps I'm being optimistic in calling it that - is the wide-ranging group of international aid organizations, writers, defense lawyers, the ACLU and others that filed a lawsuit (the same day the President signed the 4th Amendment eviscerating FISA law) in federal court that will seek to have the eavesdropping provisions in the new law declared unconstitutional.

But before I get to the details of the suit, I thought a recent article by Chris Hedges - who was part of the team of New York Times reporters who won a Pulitzer Prize in 2002 for reporting on global terrorism - was worthy of discussion. I think one of the problems we've had as "the opposition" to the FISA law is the occasional lack of TANGIBLE ways that we could articulate in which ordinary peoples lives would be effected by this bill, and its warrantless wiretapping provisions.

Granted, we know that any of us could be listened in on now (though it doesn't seem most Americans are that concerned by this fact), and that this very concept is a violations of the 4th Amendment, and that yes, Nixon used these very powers to listen in on his "enemies" (which is why the original FISA law was created). But, beyond these very serious concerns, I think many in the mass public don't yet grasp all the ways this law not only weakens our constitution and the fundamental principles our democracy was founded on, but that it also, and this is perhaps most frightening, could serve to stifle dissent and debilitate even further our already miserable corporate media and their ability to get critical information from sources abroad.

With that, here are a couple large sections of Chris Hedges outstanding article from last week (who is also part of the lawsuit). Surely it makes one wonder that the arguments he enumerates could be some of the most important reasons why this administration has so doggedly pursued this FISA bill:

The law, passed under the guise of national security, ostensibly targets people outside the country. There is no question, however, that it will ensnare many communications between Americans and those overseas. Those communications can be stored indefinitely and disseminated, not just to the U.S. government but to other governments.This law will cripple the work of those of us who as reporters communicate regularly with people overseas, especially those in the Middle East.

It will intimidate dissidents, human rights activists and courageous officials who seek to expose the lies of our government or governments allied with ours. It will hang like the sword of Damocles over all who dare to defy the official versions of events. It leaves open the possibility of retribution and invites the potential for abuse by those whose concern is not with national security but with the consolidation of their own power.

...

I spent nearly 20 years as a foreign correspondent for the New York Times, as well as other news organizations. I covered the conflict in the Middle East for seven years. I have friends and colleagues in Jerusalem, Gaza, Cairo, Damascus, Tehran, Baghdad and Beirut. I could easily be one of those innocent Americans who are spied on under the government’s new surveillance authority. The reach of such surveillance has already hampered my work. I was once told about a showdown between a U.S. warship and the Iranian navy that had the potential to escalate into a military conflict. I contacted someone who was on the ship at the time of the alleged incident and who reportedly had photos. His first question was whether my phone and e-mails were being monitored.

What could I say? How could I know? I offered to travel to see him but, frightened of retribution, he refused. I do not know if the man’s story is true. I only know that the fear of surveillance made it impossible for me to determine its veracity. Under this law, all those who hold information that could embarrass and expose the lies of those in power will have similar fears. Confidentiality, and the understanding that as a reporter I will honor this confidentiality, permits a free press to function. Take it away and a free press withers and dies.

Click here to read the article in its entirety.

Now let's get to the lawsuit, as reported in the New York Sun:

"A law like this is fundamentally inconsistent with the Constitution and with the most basic democratic values," an American Civil Liberties Union lawyer who helped prepare the suit, Jameel Jaffer, said in a conference call with reporters. "It permits the government to conduct intrusive surveillance without ever telling a court who it intends to surveil, what phone lines and e-mail addresses it intends to monitor, where its surveillance targets are located, or why it's conducted the surveillance."

The plaintiffs in the suit include Amnesty International, the Service Employees International Union, and the Nation magazine. All argued they would have trouble gathering information because of fears generated by the law's broad authority for surveillance of calls between America and foreign countries.

...

The ACLU's legislative director, Caroline Fredrickson, called Mr. Obama's reversal disheartening. "It's obviously a disappointment, but I think at the end of the day, if you look at the vote outcome, Obama didn't really take any other Democrats with him. Senator Clinton stood strong in her position. And I think there were a majority of the Democrats who voted no," she said.

The ACLU's suit does not take on the so-called telecom immunity provision, which is expected to be challenged in pending lawsuits over warrantless wiretapping.

One thing is clear, this issue is FAR FROM over. Not only do we have this lawsuit, but we have the prospects of an Obama Presidency (the disappointment of his vote aside) and a democratic led Senate with leaders like Feingold and Dodd who surely will have his ear.

One Subpoena Is All It Takes to Reveal Your Online Life

This New York Times article was an especially good analysis of the recent Google/Youtube records case, and what it tells us about how our most private information can be accessed and shared...particularly when there's a subpoena involved.

Saul Hansell writes:

Whenever questions are raised about privacy, big online companies talk about how benign their plans are for using data about their customers: Much data is anonymous, they say, and even the information that is linked to individuals is only meant to offer users a more personal experience tailored to their interests. They never talk about subpoenas.

...

The issue came up again last week when Google was ordered by a court to turn over records of activity on YouTube, including the user names and Internet Protocol (IP) addresses of people who watched videos. A judge agreed with Viacom that the records could assist its case arguing that YouTube has infringed on its copyrights.

...

But Internet companies are different from other businesses that keep records about their customers. A person’s activity online represents an unusually broad picture of his or her interests, transactions and social relationships. Moreover, it is the nature of computers to keep records of all of the bits of data they process.

...

The way the Internet is set up now, an I.P. address, by itself, doesn’t identify an individual user. But an I.P. address can be traced to a specific Internet service provider, and with a subpoena, the Internet provider can be forced to identify which of their customers was assigned a particular I.P. address at a particular time. That is how the recording industry has been identifying and suing people who use file sharing programs.

Viacom says that it isn’t going to use the information from Google to sue individual YouTube users for copyright infringement, but there is nothing under the law to stop it from doing so.

...

All this raises questions that I think Internet companies, privacy regulators and Congress would be wise to take stock of:

How much data should be retained by Internet companies and for how long?

What should Internet users be told about what sort of information could be disclosed about them in response to a legal action or government request?

Should there be new laws that define more clearly what the standards are for disclosing online surfing and searching activity?

Click here to read the article in its entirety.

Today’s Coverup of Surveillance Crimes and New Effort to Hold Dems Accountable

What can one say? It's a sad day for the Constitution, a typical one for the Republican Party, and a deeply dissapointing one for the Democrats. Yes, FISA passed today by a vote of 69 - 28 (more on this tomorrow).

To set the stage, and properly frame the issue of FISA, telecom immunity, and illegal wiretapping, watch Senator Russ Feingold give a blistering speech on the FISA sham on the Senate Floor...may the 4th Amendment rest in peace:

Watch Feingold here.

Now let's move right to Glenn Greenwald's piece on today's events in the Senate:

It was also as clear a violation of the Fourth Amendment as can be. For the Government to invade our communications with no probable cause showing to a court is exactly what the Founders prohibited as clearly as the English language permitted.

But today, the Democratic-led Congress — with the support of both John McCain and Barack Obama... — will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC’s Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats — not the Bush administration, but Democrats — will do today.

Watch him here.

...what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing — and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).Rather, the insultingly false claims about this bill — it brings the FISA court back into eavesdropping! it actually improves civil liberties!

...

It’s been quite disturbing to watch them turn on a dime — completely reverse everything they claimed to believe — the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill — a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarian vehemently opposes — will increase the civil liberties that Americans enjoy, as though Dick Cheney, Mike McConnell and “Kit” Bond decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties.

...

John Nichols of The Nation — one of the most pro-Obama media organs in the country — pointed out yesterday that Obama won the critical Wisconsin primary in large part by holding himself out to Democratic voters there — for whom civil liberties is a vital issue — as a steadfast ally of Feingold on these issues:

...

Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he’ll vote for a White House-backed FISA rewrite — which is likely to be taken up by the Senate this week — in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.

...

These are just facts — facts about Barack Obama, the FISA bill he supports and which the Democratic Congress will approve today. Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush’s spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all — including even John Ashcroft — threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were. We know, though, that even the right-wing DOJ ideologues who approved of the illegal “Terrorist Surveillance Programs” that we know about found those activities indisputably illegal and wrong. But Barack Obama and the Democratic-led Congress will today enact a bill to immunize all of that, to protect the lawbreakers who were responsible.

...

UPDATE: The Dodd-Feingold amendment to remove telecom immunity from the bill just failed by a vote of 32-66. I was mistaken about Obama’s not showing up to vote (that was the case, as I understood it, when the vote was scheduled for yesterday). He is in the Senate and, as he said he would, just voted (along with Hillary Clinton) in favor of the amendment to remove telecom immunity from the bill.

Click here to read the article in its entirety.

So what's next is the first question I would ask? Well, here's a little article I found regarding one way to punish those that sold out the Constitution:

Online Movement Aims to Punish Democrats Who Support Bush Wiretap Bill

Online activists from the right and the left announced an unprecedented campaign Tuesday to hold Democratic lawmakers accountable for caving in to the Bush administration on domestic spying.

A group of high-profile progressive bloggers and libertarian Republicans are rolling out a new political action committee called Accountability Now to channel widespread anger over pending legislation that would legalize much of the president's warrantless electronic surveillance of Americans, and grant retroactive legal immunity to telephone companies that cooperated with the spying when it was still illegal.

...

Progressive author and lawyer Glenn Greenwald, who writes for Salon.com, and blogger Jane Hamsher of Firedoglake, are spearheading the effort. They've hired the political media consultants behind a historic Ron Paul online fundraising drive to organize a similar "moneybomb," set to go off Aug. 8.

Click here to read the article in its entirety.

Google Responds To Privacy Critics with Link To Policy

A few weeks ago we (CFC) joined with executives from the Privacy Rights Clearinghouse, the World Privacy Forum, Consumer Action, the Electronic Frontier Foundation, the American Civil Liberties Union of Northern California, and sent a letter to Google CEO Eric Schmidt expressing our concern over the company's failure to post a home page link to its privacy policy.

Google's reluctance to post the link on its home page was alarming. Namely because California law is unequivocal on the subject, as it requires the operator of a commercial Web site that collects personal information about users to “conspicuously post its privacy policy on its Web site.”

The reason this issue, which appears to be rather meaningless at first glance, matters is because Google collects and retains so much information about so many people. What would it say about the future of privacy protection if one of the biggest corporate players of the information age simply refused to do what all other websites in California do: include a privacy policy!

I'm happy to report that our request was respected and Google has agreed to link their privacy policy on their home page!

Here's the article from Sci-Tech on today's exciting turn of events:

To appease privacy advocates, Google has added a privacy-policy link to its home page. Google had previously said it didn't want to clutter its page.

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"We felt that Google not only violated California law -- and keep in mind that Google is a California corporation -- but that Google was also violating standard practice for all Internet companies by not posting a link to the privacy policy on the home page," said Marc Rotenberg, executive director of EPIC.

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"We added this link both to our home page and to our results page to make it easier for you to find information about our privacy principles," Mayer wrote on The Official Google Blog. "The new privacy link goes to our Privacy center, which was revamped earlier this year to be more straightforward and approachable, with videos and a non-legalese overview to make sure you understand in basic terms what Google does, does not, will, and won't do in regard to your personal information."

Click here to read the article in its entirety.

Pay as You Go Insurance, RFID Skimming, Identity Theft Trials: Update on key privacy bills in California

I haven't found any "must post" privacy articles in the last day and a half so what I'm going to do instead is give you a quick update on the progress of 3 key privacy bills in California.

I posted info on Monday regarding AB 2800 and our (CFC) opposition to it. Well, we now have an official opposition letter describing our reasons why we must oppose this seemingly well intentioned piece of legislation.

First, AB 2800 (D - Jared Huffman) would allow insurers to develop "green" automobile insurance policies that create financial incentives for driving fewer miles on the road, thereby causing less pollution. CFC opposes this legislation on a number of grounds, including the likelihood that insurance companies would use GPS tracking devices to verify policyholders' mileage. These devices invade the privacy of motorists, since they capture data about each driver's daily travels.

Current insurance law, Proposition 103, already incorporates mileage as one of three mandatory factors for determining insurance rates. CFC believes the worthy goal of AB 2800 - reducing automobile emissions - should be achieved by more direct means, including financial incentives to purchase zero emission vehicles and disincentives in the form of polluter fees for purchasing vehicles that emit excessive amounts of greenhouse gases.

Click here to read CFC's Opposition Letter

The Department of Insurance to also take up Automobile "Spyware" Issue

The Department of Insurance held a workshop on "Pay-As-You-Drive" automobile insurance last month in preparation for a regulatory process that could lead to new automobile insurance rates designed to provide incentives for driving less. Consumer and privacy advocates raised numerous concerns, including objections to permitting insurance companies to use GPS tracking devices to verify mileage. We will keep you informed of any further developments.

SB 612 Signed by the Governor!

Privacy advocates won their second battle (the other being SB 1096's defeat) in as many weeks today with the signing of SB 612 (Simitian - Palo Alto), which gives victims of identity theft a better opportunity to obtain justice by allowing identity theft cases to be prosecuted in the county where the victim lives - which is not always the location of where the crime occurs. Current law allows for the prosecution of identity theft in the county where the theft occurred or the county in which information was illegally used, both of which may be hundreds of miles away from the victim's home.

SB 31 Wins Unanimous Assembly Appropriations Vote!

SB 31 (Simitian) overwhelmingly passed the Assembly Appropriations Committee today. The bill would make it illegal to "skim" (surreptitiously read and record) information from an RFID-enabled ID without consent, and by making it illegal to disclose RFID "system keys," (similar to a codebook). The bill now moves to the Assembly Floor.