The Problems Of Web Surveillance: Some Context For My Quote In The New York Times

UPDATE: The New York Times published most of the rest of my comments on Bits Blog. Thanks!

I was quoted in a cover story in today's New York Times as saying, essentially, that law enforcement was "just trying to do their job" in pushing for greater subpoena power. This particular remark was an aside, made if anything to soften the impression that I was overly critical of the government. For instance, I lamented that consumers do not understand the state of the electronic privacy law and spoke about the dangers of dragnet or otherwise excessive surveillance. (Presumably I am one of the unnamed "[e]lectronic privacy and civil rights advocates" that worries "because the WikiLeaks court order gained such widespread attention, it could have a chilling effect on people’s speech on the Internet.")

I did not mean to imply that we should not push back against government and in fact praised Google and Twitter for having done so. I did offer that the government's purpose in pushing for greater surveillance power was not to erode civil liberties for its own sake, but in order to protect Americans by detecting and punishing crimes. But the gist of my remarks was that we need more protection, not less. Some of my talking points appear below for context.

1) Consumers do not understand the circumstances under which the government may gain access to their data. Privacy policies tend to say only that the company will comply with lawful requests. Some companies (e.g., Navigenics) commit to "use reasonable and lawful efforts to limit the scope of any such legally required disclosure.” I wish more did. Moreover, we should applaud the lawyers at Google, Twitter, and other companies that seek to limit the scope of subpoenas or alert the target of the investigation so that she may combat the request.

2) Electronic privacy laws are outdated and do not reflect contemporary technology or practices. For more, see the excellent work of Digital Due Process or come to our Data Privacy Day panel with Susan Freiwald (also quoted) and Kevin Bankston.

3) Regardless of the government's motives, certain practices threaten to chill free speech and should be viewed with great skepticism. One is dragnet surveillance, i.e., fishing for information with broad subpoenas or even monitoring communications automatically. As I argue extensively in The Boundaries of Privacy Harm, no official needs to see private information for a privacy harm to occur. EFF and EPIC have been particularly vigilant in the fight against this dangerous trend.

Your thoughts welcome. Thanks to all of you who wrote to me saying that the quote did not sound like me. Apologies to those who found the remark unfortunate out of context.