Legal Commentary

An 'Inadvertent' Loss of Privacy

By TChris

It doesn't matter how carefully laws are tailored to preserve a balance between the interests of national security and the privacy interests protected by the Fourth Amendment when those laws are ignored (as they have been in the Bush administration) or when those tasked with releasing private information to the government inadvertently go too far. National attention has focused on the former threat to privacy, but the NY Times reminds us that the latter threat is just as real.

A technical glitch gave the F.B.I. access to the e-mail messages from an entire computer network — perhaps hundreds of accounts or more — instead of simply the lone e-mail address that was approved by a secret intelligence court as part of a national security investigation, according to an internal report of the 2006 episode. ...

The episode is an unusual example of what has become a regular if little-noticed occurrence, as American officials have expanded their technological tools: government officials, or the private companies they rely on for surveillance operations, sometimes foul up their instructions about what they can and cannot collect. The problem has received no discussion as part of the fierce debate in Congress about whether to expand the government’s wiretapping authorities and give legal immunity to private telecommunications companies that have helped in those operations.

How often do the distributors of private information screw up? [more..]

A report in 2006 by the Justice Department inspector general found more than 100 violations of federal wiretap law in the two prior years by the Federal Bureau of Investigation, many of them considered technical and inadvertent. ...

Past violations by the government have also included continuing a wiretap for days or weeks beyond what was authorized by a court, or seeking records beyond what were authorized. The 2006 case appears to be a particularly egregious example of what intelligence officials refer to as “overproduction” — in which a telecommunications provider gives the government more data than it was ordered to provide.

The problem of overproduction is particularly common, F.B.I. officials said. In testimony before Congress in March 2007 regarding abuses of national security letters, Valerie E. Caproni, the bureau’s general counsel, said that in one small sample, 10 out of 20 violations were a result of “third-party error,” in which a private company “provided the F.B.I. information we did not seek.”

An FBI spokesman assures us that the improperly collected emails were "destroyed through unspecified means." Maybe, but what assurance do we have that they weren't read before they were destroyed by "unspecified means"?

The spokesman also assures us that "The system worked exactly the way it’s designed." Really? The system is designed to foul up, giving the FBI access to hundreds or thousands of private emails that it has no right to view? Maybe it's time to design a system that works.

Full post as published by TalkLeft on February 17, 2008 (boomark / email).