LEGISLATING PRIVACY IN ELECTRONIC COMMUNICATIONS
What Are Reasonable Expectations?

Edited by Peggy Rossing


The conference "LEAHY BILL" on Unison has generated interesting
discussion of what privacy rights merit protection by legislation such as
Senator Leahy's proposed electronic communications privacy act.

The discussion got going when a contributor expresssed concern that the
language of the Leahy bill doesn't protect small bulletin board systems
(BBS's), because there is no assurance of privacy--as most sysops can
peruse the "private mail" anytime they like. Senator Leahy said in
remarks during the introduction of his bill: "A number of tough questions
remain to be answered. Chief amongst these is whether electronic
communications systems which are not designed to protect the privacy of
the communications be carried should be afforded legal protection."

The analogy was drawn between regulation of BBS systems and copyright law
and it was suggested that legislation should put the burden on system
operators to notify their users about the level of privacy that they can
expect. Without a notice, no privacy is assured.

Defining Reasonable Expectations
================================

It was clear that we needed to discuss the situations in which a
reasonable person's expectations of privacy are infringed. For example,
on most bbs's we realize that the sysop has the ability to read our notes,
and we can't expect that he or she may or may not read them (and possibly
censor them if he or she deems it necessaary). But we would be upset if,
without our knowledge he or she could permit access to our private e-mail
to law enforcement authorities. Law enforcement authorities need a
warrant to intercept phone communications, and it was suggested that
private e-mail deserves the same protection.

It was pointed out that while Public BBS's have some qualities of mail and
the telephone, they also have some of the qualities of writing done on a
wall in public. " A contributor wondered if we should put off as long as
possible regulation of BBS's--"It's only going to lead to restrictions on
them. I prefer to have people be allowed to say dirty things on BBS's than
to have my right to say what *I* want, diminished in any way."

We identified that we were really talking about three different concepts:

1. Copyright. Who owns the words written on electronic networking
systems.

2. Censorship. The right to control -what- is written.

3. Security. The right to decide who reads what you write.

A contributor related that during an online class he taught in Telelaw, he
found that people didn't really expect any kind of privacy on a BBS
system-- but they did expect not to have their message traffic
"intercepted" without their approval, or without some kind of legal
justification.

BBS's and Supermarkets
======================

The argument against privacy on BBS's might go like this: A person
leaving a note labeled "private" on a supermarket bulletin board does not
expect the government to prosecute a shopper who reads the note without
permission, and would not require the local police to get search warrant
to read it.

The next analogy posed was the SuperBowl. "You see an old friend sitting
60 feet away. You want to send her a note. You pull out your trusty
notepad, pen your missive, fold it, put your friends name on it with the
word "PRIVATE" writ in large letters. You pass it to your seatmate and
ask that he send it down the line. Before it reaches its destination it's
read by 20 people. Infuriated you call the stadium gendarmes. You demand
they turn the 20 offenders over to the cops. They ask how much you've had
to drink..... [This could be seen as an analog anology to FIDO or UUCP
mail]"

[In FIDO mail, a message posted on a local BBS is passed along a chain of
local FIDO systems until it reaches its destination.]

Are supermarket bulletins relevant to electronic mail? A contributor said
"For one thing, there is no implied privacy on the market's bulletin
board. No section that says 'Private messages go here. (Please fold in
half).' Likewise, the police, could 'raid' the board, taking down any
notes they chose."

For a public BBS, the fact that you don't have to be some special breed of
cat to join is what makes it public. Like the post office. It's a public
place--you can enter any post office you choose." But the post office
contains PRIVATE boxes. "Open one of those boxes, in a public building,
one that doesn't belong to you, and you're in big trouble." The same
should be true for public BBS's with private "mailboxes." However anyone
who uses UUCP or FIDO should know that those messages are transfered
through so many hands, it's going to get "read' somewhere.

Another contributor raised issues of technology: "It is obvious that
unless a message system (electronic public or private) stores the messages
in an encrypted format the people who programmed and maintain the system
have the ability to read the messages. Even in some encryption systems
the maintainer might have a generic key if he really wanted to read what
was there." I believe that any system that claims to have a "mail" system
that allows private messages also has the responsibility of ensuring that
both other users and employees do not access private mail not addressed to
them."

Zone of Privacy
===============

I agree that the expectation of privacy in the supermarket notice board is
next to nothing. The same goes for your expectation of privacy should you
desire to make love on a public beach--and neither privacy expectation is
protected by law. However, most people believe that what they do in
their own homes should be free from government interference. This "zone
of privacy" concept has led the courts to strike down restrictive birth
control laws, and the "zone of privacy" also applies to search and
seizure. There are also cases about eavesdropping, whether you are
protected in a phone booth, at home, at places of business etc.

We also pointed out that U.S. mail was protected by law. According to a
contributor, "the government has 2 levels of mail monitoring, both of
which require court supervision and approval. The government can apply
for either a 'mail cover' [where they track traffic patterns] or a full
inspection of one's incoming and outgoing mail."

Remedies for Intrusion
======================

We also considered remedies:

"I see the main protection against federal intrusion coming, in practice,
from civil rather than criminal sanctions. Ideally legislation should set
a minimum level for damages, ($ 10,000?) for governmental breach of
privacy."

The point was raised that because there have been no publicized court
cases on "bbs snooping", law enforcement authorities at present would have
a "good faith" defense to any lawsuit brought for violation of civil
privacy rights.

A contributor pointed out that we need to be concerned with international
security of electronic communications. "The NSA has admitted in
Congressional testimony to intercepting virtually all international
communications."

A question was raised about warrants: How specific do they have to be?
On a system such as UNISON, could the authorities ask for an entire back
up tape? "If so would they be able to act (legally) on information
obtained by scanning though this other information when they had no idea
of what they might find?"


The problems with legislating electronic privacy were summed up in this
comment: "What the heck is the definition of privacy as it relates to
electronic speech? (Answer: no one knows) Freedom of Speech: What can be
said in an electronic forum? Not anything you like, according to one
Senator I know. Protection: Just what the heck does that mean? Obviously,
it means different things in different parts of this medium?! That's just
crazy. Why should something I write (say) in one forum, be protected and
not in another?"

-------------------------

In order to play a key role in developing legislation that respects the
privacy rights of electronic network users, the ENA must continue this
discussion. We should develop principles promoting free expression and
the same protection from governmental interception of communication
afforded more traditional forms of communication. If you have special
expertise in this area, you are especially invited to join our conference
"Leahy Bill" on UNISON, or to convey your thoughts to us along the
networks.

----- Author's note: Peg Rossing is an attorney who remembers a little
about First Amendment law from her Constitutional Law class. She has just
agreed to be Telelaw Editor for NETWEAVER, and wants anyone with access to
current developments in "telelaw" to get in touch with her! She can be
reached as PeggyR or Peg Rossing on Unison.