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Watching
the Detectives
There’s
a couple of things swirl ing about that point to some serious
erosions of personal privacy—well, more serious erosions
of personal privacy.
EFF and Public Knowledge recently sued the federal government
to get access to the inexplicable secret international negotiations
that are going on for something called the Anti-Counterfeiting
Trade Agreement, or ACTA. Trade representatives from most
of the industrialized world (typically little more than shills
for Big Media and other titans of information) have been working
secretly on a treaty that is supposed to create a new paradigm
of international enforcement of intellectual-property rights.
One document has leaked out from this secretive body, and
it indicates that what’s on the table includes stiffer measures
to police “Internet distribution and information technology.”
Among the measures recommended are having all signatory countries
pass laws requiring Internet-service companies (“ISPs”) to
“filter” end-users’ online habits, and also requiring heightened
border searches.
Forcing ISPs to “filter” your online habits is code for monitoring,
inspecting, and generally snooping into what you’re doing
online, to make sure you’re not, like, infringing or something,
all on behalf of the Big Media industries like the record
and movie companies. Basically it’s asking your Internet company
to carry the copyright owner’s water for them, all at the
expense of your privacy.
Heightened border searches could well include customs agents
taking a look at the hard drive of your laptop. Not just scanning
the machine to make sure it’s not a pimped-up bomb, and but
actually looking at the information you’ve got on your machine.
More on this in a minute.
Congress will have the final say in this, but Congress often
rolls over when presented with a fully negotiated international
contract. This happened in the ’90s with the ridiculous Digital
Millennium Copyright Act, which included provisions Bill Clinton
initially couldn’t get through Congress. So he sent his trade
reps to negotiate a big international treaty with the rejected
provisions included, and then came back to Congress, basically
saying, “The rest of world is doing it! We can’t be left behind!”
And Congress folded like a two-dollar suitcase. And it will
again, because most members of Congress don’t care about this
stuff. Privacy’s not a big vote-getter. Look at the FISA debacle.
I mean, if you don’t have anything to hide, why should you
be worried about your privacy? Right? Right?
So
it’s important that the ACTA negotiations become transparent
sooner rather than later, before it’s a done deal being presented
to Congress, and before Time Warner and Comcast become our
intellectual babysitters.
The border-search thing is even more troubling. A West Coast
federal appeals court recently ruled that the customs service
does not need “reasonable suspicion” to seize and review the
contents of someone’s laptop or electronic device. “Reasonable
suspicion” is a fairly low threshold to begin with, something
more than a hunch, but this court has decided that even that
isn’t required for a customs officer to look at your hard
drive.
The court said, remarkably, that looking at the contents of
one’s computer is not comparable, in terms of invasiveness,
as searching someone’s home. Why? Because, said the court,
“one cannot live in a laptop.”
Wow. I’ve seen a number of instances, involving “national
security” (like this court case) or intellectual-property
infringement (like the RIAA lawsuits against college kids,
and possibly, this ACTA treaty), where law enforcement and
the courts treat hard-drive inspection like it’s no big deal.
No big deal? Like many of you, I spend most days on my computer.
I’m on it right now. I search, I write, I edit, I post, I
work, I goof around, I correspond, I think on this
damn thing. I do things I’d prefer other people not know about.
Tell me you don’t. And all of it is sitting, somewhere, on
my hard drive.
In a very, very real sense, the hard drive on my computer
is an extension of my brain, more so, certainly than the stuff
in my house. If I had to choose, I’d rather have a cop sitting
in my living room that tracking everything I did online.
So this appellate panel (which I suspect was made up of freedom-hating
neocons and 70-year-old luddites) got it absolutely wrong.
One can live in a laptop. I do. So do many of you.
So allowing government agents to simply grab your hard drive,
for no reason, and do whatever they want with it is an invasive
and unreasonable search to the extreme, in stark violation
of the Fourth Amendment.
The court case may be taken up to the Supreme Court. It must
be reversed, either judicially or legislatively, because it’s
absurd and dangerous. And it kicks the door open for the ACTA
provision of increased border searches. You wanna be held
up at the border because some of the music in your computer
may be less than legit? Does this sound like America to you?
—Paul Rapp
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