Midwest Today, March 1994

SHOCKING NEW ASSAULTS
ON YOUR PRIVACY

Big Brother Is Watching, And He's Probably Got Your Number

Although we feel unknown, ignored
As unrecorded blanks,
Take heart! Our vital selves are stored
In giant data banks,

Our childhoods and maturities,
Efficiently compiled,
Our stocks and insecurities
All permanently filed,

Our tastes and our proclivities,
In gross and in particular,
Our incomes, our activities
Both extra- and curricular.

And such will be our happy state
Until the day we die
When we'll be snatched up by the great
Computer in the sky.

-Felicia Lamport

In the dark of night, on the evening of October 5, 1994 the U.S. House of Representatives voted unanimously to fund a national system for "Interception of Digital and Other Communications," passing H.R. 4922. It was fast-tracked through with minimal hearings, and with public access to crucial testimony prohibited.

About 9:30 PM on October 10th, the Senate concurred, rushing to adjourn so Senators could go out and campaign.

Thus the Congress -- which at that time had yet to be taken over by a strident band of Republican revolutionaries bent on eroding personal freedoms and liberties -- had mandated that an Orwellian system be created for monitoring every citizen in the country. Not long thereafter, President Clinton signed the measure, as it was his appointees who had most zealously sought its passage.

The legislation in question allocated $500 million to pay communications companies to begin implementing what privacy advocate Jim Warren calls "Government Surveillance of the People, by the Bureaucrats, for the Incumbents." Some communications experts have put the total cost at between three and six billion dollars.

The intent of the law was said to be simply to aid law enforcement, but use of the phrase "other lawful authorization" raises ambiguities about the scope and effect of the new statute.

For instance, as Jim Warren wonders, "How many thousands of federal, state, and local agencies does H.R. 4922's 'government' include? How many tens of thousands of...[officials] will have authorized access to this pervasive surveillance power? How many thousands of political appointees control those agencies - and are controlled by incumbent politicians?

"How many hick sheriffs or local party bosses or nosy night staff are likely to make unauthorized use of this Congressionally mandated snoop-n-peep technology against boy- and girlfriends, family members, personal enemies, business competitors, and -- most dangerously -- political opponents?"

The implications of this new system are indeed sobering. But even more disturbingly, they are part of a larger trend.

Privacy in America has undergone an enormous assault in recent years, to the point that individuals can no longer take comfort in the protections originally afforded by the Founding Fathers.

There have been revelations of IRS snooping, creation of a DNA databank, attempts to weaken the exclusionary rule on illegally seized evidence, a move to permit warrantless searches, abuse of forfeiture laws, plans to involve the military domestically to spy on groups suspected of advocating views hostile to the government, and a new "Clipper" chip that the National Security Agency developed and wants to install in every telephone, computer modem and fax machine to permit easier surveillance.

Technological advances and widespread use of computers have already made it simple to transfer all kinds of information about citizens -- proprietary or not -- among banks, hospitals, government agencies, or law enforcers. And with the prospect of an Information Superhighway, telecommunications, cable operators, and other businesses will have the ability to assemble these disparate types of information about an individual into an all-but-comprehensive personal dossier.

Already, your chances of finding work, getting a mortgage or qualifying for health insurance may be up for grabs, because almost anyone with a computer, modem and telephone can surf through cyberspace into the deepest recesses of your private life. Confidentiality safeguards are so laughable, malicious tipsters can poison a person's record with innuendo or wrong and harmful "facts" that are difficult to detect and correct.

Syndicated newspaper columnist and privacy advocate Joseph Perkins has written that, "As long as the Republicans are of a mind to amend the Constitution, there is another measure they ought to consider -- an amendment that protects the privacy rights of the citizenry."

Indeed, unlike the rights to peaceably assemble, to keep and bear arms or to have a speedy and public trial by an impartial jury, the right to privacy is not explicitly set forth in the Constitution.

Rather, it is implied by the Fourth Amendment, which states that the "right of the people to be secure in their persons, houses and effects, against unreasonable searches and seizures, shall not be violated."

This amendment, however vague, provided citizens adequate protection of their privacy during the early days of the Republic. But in our modern times, when technology enables both government and industry to intrude upon the lives of citizens in ways the Founders never dreamed, the Fourth Amendment has proven inadequate in safeguarding the public's privacy rights.

Experts cite these examples of how individual privacy is being eroded:

• IRS snooping. In a hearing before the Senate Governmental Affairs Committee, Internal Revenue Service officials confirmed that 1,300 of the agency's employees have been investigated over the past five years on suspicion of rummaging through private taxpayer files for no official purpose.

  In most cases, the IRS workers peeked at the returns of friends, relatives, neighbors and co-workers. But some of the snoopers were curious about the personal finances of prominent taxpayers, such as sports figures, politicians, entertainers and business executives.

   

• DNA databank. Unbeknownst to most Americans, a nationwide Per kins databank is being built that contains blood samples from millions of citizens, whether or not they ever have been involved in a crime.

  At the moment, samples are being gathered primarily from three sources: newborn babies, military recruits and convicted felons. But, increasingly, human human is being saved by research laboratories, biotechnology companies, fertilization clinics and certain health insurance companies.

   

• Omnibus Counterterrorism Act. On the surface, it sounds reasonable - especially in light of the Oklahoma City bombing tragedy. But one section of President Clinton's proposed counterterrorism legislation would allow federal investigators to target Americans of particular political beliefs -- just as in the days when the FBI spied on the NAACP and shadowed, raided and harassed Americans who opposed the Vietnam war.

  If the Clinton bill had been law, Americans who gave $10 to attend an African National Congress anti-apartheid event would have committed a crime. And the FBI would be free to investigate anyone who attended such a fundraising event -- even if the money went to peaceful, political or humanitarian activities.

  New York Times writer Anthony Lewis says that "Punishing Americans for the peaceful expression of their political views is a gross violation of the First Amendment. The amendment's 'central meaning,' the Supreme Court has said, is freedom of political expression."

  Kansas Sen. Bob Dole says he thinks the rules already give the FBI all the scope it needs. For once, Dole was right. "This is America. This is not a police state," he commented.

   

• Wiretap access. Congress approved the aforementioned legislation that will make it easier for police to monitor private telephone calls without court permission.

  The new law mandates that the nation's telecommunications companies ensure within four years that their new telephone networks and services can be wiretapped. While wiretapping is an often necessary crime-fighting tool, the new law opens up the potential for abuse.

  That's because the telephone companies are being required to install the so-called Clipper computer chips in telephone equipment that provide remote-activated surveillance and eavesdropping capability to police. And because these chips will be specially "encrypted," telephone companies will not know when they are being activated. This will permit overzealous police officers to conduct unauthorized, undetectable wiretaps.

  Two dozen companies and trade groups oppose the Clipper. Jim Burger, a lobbyist for Apple Computer, says "Industry is unanimous on this." A petition circulated on the Internet by Computer Professionals for Social Responsibility garnered 45,000 signatures.

  The Bush administration's drug forfeiture funds entirely paid for development of the Clinton administration's Clipper chip technology -- outside of Congressional oversight or funding.

   

• National work registry. A federal commission on immigration reform has proposed creation of a computerized registry that would identify people according to their Social Security number. Ostensibly, it would be used by employers to determine that a job applicant is either a U.S. citizen or an legal immigrant.

  "The danger," says Joseph Perkins, "is that the registry eventually would be used for other purposes. Indeed, when the government first started issuing Social Security numbers," he recalls, "federal law dictated that the numbers could not be used for purposes unrelated to administration of the Social Security system. Now individuals are required to provide Social Security numbers for all manner of transactions, from opening a bank account to applying for credit to filing an insurance claim."

  With so much personal information tied to the Social Security number, it seems only a matter of time before the government begins to compile detailed electronic dossiers on every citizen.

Consumers Are Targets

Every year millions of us consumers unwittingly fill out some questionnaire or application that effectively signs away our rights to privacy.

Even without our help, marketing moguls miss few of the intricacies of our spending habits. They scour government census records, phone bills, credit card transactions, bank statements, product warranty cards, automobile registrations and the like. Author Erik Larson calls them "data harvesters" -- companies that comb public and commercial records for the personal details that consumers shed unwittingly each time they do any number of seemingly innocuous things.

Almost everything about you is of interest to someone, and little, it seems, is unknowable. Reposed in massive computer data bases are the most minute and obscure details of your life. Your age, weight and hair color are culled from Department of Motor Vehicle records; your political leanings from your charitable contributions; your appetite for mystery novels as chronicled by your local chain bookstore; the due date of your baby from the guest register at the maternity-clothing store where you shop.

Think your taste for Coors beer and preference for Naturalamb condoms are personal secrets? Think again. Each time you swipe your magnetic bank card through the electronic reader at your grocery store checkout counter, a computer records for posterity - and direct marketing purposes -- your name and a full list of the products you bought.

Relentlessly probing consuming habits with ever-sophisticated technology, the marketing industry traffics in zillions of bits of information -- buying, selling and trading data that reduces us to "consuming units." The resulting "recombinant informational profiles" reveal our deepest and perhaps darkest purchase desires. A growing number of Americans are afraid that society's increasing dependence on electronic data storage will make it virtually impossible for any of us to safeguard our privacy.

"Interactive technologies pose great opportunities," says Janlori Goldman, director of the American Civil Liberties Union's Privacy and Technology Project. "But we need to realize that if we don't protect personal information on the highway up front, people won't use it."

Companies such as Citicorp, American Express, and TRW Information Systems & Services say they are working hard to ensure that their databases are impregnable. Still, mistakes occur.

In March of last year, for example, National City Bank in Cleveland mistakenly gave a telemarketing company detailed data on approximately 180 of its customers, including their account and Social Security numbers. The bank said it has taken steps to make sure this won't happen again. But privacy activists point to the incident as an illustration of how easy it is for electronic data to wind up in the wrong hands.

"The cost of invading your privacy is cheaper and cheaper as the development in technology grows," said Ken Laudon of the School of Information Systems.


A personal experience

A former Wall Street Journal reporter, Erik Larson, 40, wrote a book entitled "The Naked Consumer: How Our Private Lives Become Public Commodities" (Penguin, $10.95). In it, he traces the multitude of sources for marketers and others to acquire detailed information about consumers.

Larson spent two years researching and writing the book and said his research made him much more careful about divulging personal information.

"Somewhere along the way, the data keepers made the arbitrary decision that everyone is automatically on their lists unless they ask to be taken off," Larson wrote. "This is a deft bit of work redistribution. Instead of companies having to work at persuading us to hop into their data banks, we consumers have to work at keeping ourselves out of them."

One week after the birth of his second daughter, Larson found a sample pack of Proctor & Gamble diapers on his doorstep. Six days before his eldest daughter turned one, she received her first birthday card -- emblazoned with a big lavender teddy bear -- from American Baby magazine.

"Someone out there was observing my little family and gauging its progress through time," says Larson.

So he decided to go undercover and pose as the CEO of a fictitious direct-mail corporation. He wanted to infiltrate marketing companies gathering and selling consumer information. The result is his expose of what Larson calls "consumer espionage" that is threatening our right to privacy merely because of what we buy or don't buy.

"[Data] is used primarily as a marketing tool, although we've seen technology has a way of being applicable to many fields at once," says Larson, who recounts questionable uses of marketing data.

"The secrets prospectors are everywhere," Larson insisted. "You don't see them because much of their probing is done from a distance through oblique means and because only a relative few of America's 250 million people are subjected to intense scrutiny at any one time.

"But we continually betray secrets about ourselves, and these secrets are systematically collected by the marketers' intelligence network."


Medical Records Not Confidential

Even though you may be asked to sign an "Informed consent" statement that authorizes the appropriate release of your medical records to other doctors, employers or insurance companies, the ritual has lost almost all meaning in an era of huge computer databases that can quickly and repeatedly disperse patient files, according to one study.

A report prepared by the Office of Technology Assessment, said the current system of protecting patient confidentiality has been built on "a patchwork" of codes, state and federal laws that "is inadequate to guide the health-care industry."

The patchwork system, the iota report noted, "fails to confront the reality that, in a computerized system, information will regularly cross state lines, and will therefore be subject to inconsistent legal standards with respect to privacy.

"The law allows development of private-sector businesses dealing in computer databases and data exchanges of patient information without regulation, statutory guidance, or recourse for persons who believe they have been wronged by abuses of data," the report stated.

"These companies use the medical information made available to them by gathering and selling aggregate information, usually without patient knowledge or consent (although with the knowledge of the participating physician)," the report explained. "These practices, for the most part, are currently legal..."

One computerized clearinghouse, for example, provides medical and other risk information to about 700 U.S. and Canadian life-insurance companies.


When You're Traveling...

Anyone who stays in a hotel which subscribes to IBM's new GuestNet data-base/communications program will have their preferences compiled in a dossier.

Ask a housekeeper for a down comforter instead of a wool blanket on your bed, and that will get into the database. Ditto if you tell a concierge that you don't want a room on an upper floor. Order room-service breakfast, and the time you specify for delivery will go into the database. So will how much you spent at the coffee shop, and what kind of wine you ordered with dinner.

The Preferred hotel chain, primary user of GuestNet, also is buying marketing lists to use with the service. The lists will help round out customers' profiles with their occupation, the kind of car they drive and what magazines they read.

At Ritz-Carlton hotels, employees carry notepad to record any kind of special request from guests. The information is compiled in a database. Omni Hotels keeps an electronic record of customer preferences as well. The databases give hotels that compete on service, rather than price, a tool to cater to customers' every whim. Any of this information will be available for a clerk's asking the next time you stay at a hotel that uses GuestNet.

Preferred Hotel's president, Peter Cass, admits his company's approach raises some privacy concerns. He says he's sensitive to that, so GuestNet won't record who visited a guest during his stay.


Warrantless Searches

Conservative columnist James J. Kilpatrick says that "in seeking to weaken the warrant process, cumbersome as it may be, the [U.S.] House has gone badly astray." By passing the bill offered by Rep. Bill McCollum, the House of Representatives would allow police to search without warrants if officers thought they had "objectively reasonable" grounds to do so -- whatever that means. (Action is pending in the Senate).

Nat Hentoff, a nationally renowned authority on the Bill of Rights, says he finds it "eerie that Congress is so close to ignoring not only the present dangers of warrantless searches but also the strong historical evidence that the ratifiers of the Bill of Rights were particularly insistent on the Fourth Amendment's specific guarantees against arbitrary police invasions of their homes and businesses.

"As a substitute for the Fourth Amendment," Hentoff says, "Orrin Hatch and other senators have in hand a tort remedy that would allow victims of egregiously 'bad faith' warrantless searches to sue headstrong police for damages -- a long, costly and dubious procedure. The tainted evidence would be admitted in court -- as in the time when British troops barged into American homes."

More than 80 years ago, the Supreme Court said the Constitution required the exclusion of tainted evidence. A few miscreants went free, but for the most part the rule encouraged the police to respect the privacy rights of all citizens by making more careful, court-approved arrests.

In recent years, however, the Court has weakened the Fourth Amendment by finding exceptions to the exclusionary rule, such as a police officer's "good-faith" belief in a search's legality.

Imagine a nosy neighbor tipping off police that you have "grow lights" in your basement. Police officers could enter your home, rifle through your belongings, subject you to harassment, embarrassment and even worse, and do so legally without a judge's scrutiny or directive -- under the pretext that they suspected you might be growing marijuana, when all you were really growing was African violets.

If the Senate passes the law, and the President signs it, a flurry of legal challenges will no doubt ensue, on the grounds that it violates the Fourth Amendment. Whether the Supreme Court would uphold the law is uncertain.


Military-Style police actions

There are only two references to a specific need for federal police action in the Constitution: "To provide for the punishment of counterfeiting the securities and current coin of the United States" and to "define and punish piracies and felonies committed on the high seas and offenses against the law of nations."

In a paper presented to the annual conference of the American Society of Criminology, David Kopel and Paul Blackman pointed out that, spurred by the drug war, law enforcement "has become increasingly militarized. No-knock raids with battering rams, agents dressed like ninjas and spray-firing machine guns, the fabrication of information in warrant applications, forfeiture and confiscation of property without a trial and a steadily blurring distinction between the standards appropriate for law enforcement in a free society and the practices typical of military occupation of a conquered nation have been the most important...trend of the last decade."

Janet Reno and the Justice Dept. have still not owned up to how disastrously the Randy Weaver standoff at Ruby Ridge, Idaho and the Branch Davidian assault at Waco, Tex. were handled. Astonishingly, she has elevated to higher-ranking status within the FBI, Larry Potts, a man who recently was censured for his role in these two high-profile cases.

Potts was disciplined for his failure to assure that the rules of engagement at Ruby Ridge conformed to standing Pots rules, which allow use of deadly force by agents only in defense of themselves or others. In the 1992 incident, the FBI shot and killed the 13-year-old son and the wife of white supremacist Randy Weaver as she held her 10-month old baby. Potts apparently gave the go-ahead to use lethal force even though Mrs. Weaver was unarmed. Other agents at the scene were cited for what 10-foot FBI director Louis Freeh called "inept bungling," including a failure to preserve the crime scene, removing evidence, then reconstructing it again later. Local Idaho prosecutors are considering whether to bring murder or other charges against FBI officials.

The siege at the Branch Davidian compound in Waco, Texas was also Potts' case. The two incidents have become an anti-government rallying cry for militants and have been seen as a possible motivation for the bombing of the federal building in Oklahoma City. Liberals as well as conservatives have denounced Potts' promotion as ill-timed, insensitive and even provocative to domestic militia groups. Many thinks it bodes ill for law-abiding citizens because it bespeaks an arrogance and abuse of authority by Reno's Justice Dept.


National citizen surveillance

For decades, the power of the FBI to conduct surveillance and wiretaps -- the old-fashioned, difficult, expensive kind that required laborious field installation and constant on-site monitoring by agents -- was abused and exploited, as has now been extensively documented in books and multi-hour PBS documentaries.

Even without this monumentally-more-powerful wiretap system that is on the verge of being implemented, J. Edgar Hoover exploited the Bureau's powers for decades, to enhance his personal power and increase funding of the FBI. In 1976, a Senate select committee concluded after 15 months of investigation that the FBI and other intelligence agencies had consciously and repeatedly violated the law and the Constitution in building files on the political activities of hundreds of thousands of American citizens -- often without the knowledge or scrutiny of higher officials.

As Jim Warren comments, "There is no question that law enforcement and other security agencies need the ability to conduct reasonable wiretaps - even if they did ignore the wiretap information they received prior to the World Trade Tower bombing. It is equally true that they will need to buy new equipment to be able to tap...other digital communications...We would all like to see good government do its work efficiently.

"But this national citizen surveillance system is much too powerful to give to government as a whole, much less vesting its control exclusively in the executive branch. It is too easy to abuse -- just as the PBS surveillance power was abused for decades.

"It is most especially dangerous without ample oversight. At the least, it should include automated monthly re-ports from the communications carriers to the legislative and judicial branches -- just like phone bills, and generated just as automatically -- detailing exactly who is doing what, to whom, with which part of this awesome authority.


Tax Records

Intuit, Inc., best known for its popular Quicken personal finance program, conceded in March that its programmers had inadvertently included information in its Macintax tax preparation program that would enable computer users with modems to gain access to the central computer that stores the electronic tax returns filed by Intuit's customers.

The company's vice president, Mark Goines, acknowledged that "It's clearly possible that someone could have gone into the system and looked at someone's data or perhaps deleted a file."

Approximately 60,000 electronic tax returns are stored in a computer operated for Intuit by a subcontractor, Nelco Inc., in Green Bay, WI. Nelco serves as an electronic clearinghouse, consolidating the Intuit returns onto computer disks, which are forwarded to the IRS.

Intuit officials said there was no evidence that any of the electronic tax returns stored in the Nelco computer had been tampered with or deleted, but they also acknowledged that there was no way to be sure of this.

In an anonymous e-mail message to The New York Times, one computer hacker reported that "Not only could I upload my return, I was able to download anybody's return that was on their machine.

"In addition, all the returns were not protected nor encrypted, and they could also just be deleted."

The Times noted that "the lack of encryption or other similar security measures to guard the electronic tax filings of Intuit's customers is further evidence that consumers' private financial data often is not well protected in cyberspace."


Cellular Phone Fraud

Cellular phone owners who start to receive wrong-number calls or hang-ups might want to peruse their next bill very carefully. They might be victims of a growing high-tech crime. With sophisticated scanners, electronically adept schemers are filching the codes needed to create "cloned phones" that others can use to make and receive unauthorized calls. Any calls dialed from a clone will get billed to the legitimate subscriber.

Stolen identification codes present a thornier security breach for the cellular industry than electronic eavesdropping does. Corporate spies can pluck all sorts of valuable proprietary information from unguarded airwaves by eavesdropping on cellular conversations.


Crime On the Internet

The Internet is a worldwide system of computer networks started by the U.S. government as a way to link the Defense Dept. with academe and ensure that some computer somewhere would survive a nuclear war. Since its creation in the late 1960s, the Internet has for the most part been the province of university computer-science departments and engineers, who quickly made it a useful tool for sharing information on everything from research to recipes.

Today, however, it's a media darling - a forerunner of the Information Superhighway. And if you believe all the computer-industry hotshots and media hype, the highway will be our lifeline in the future.

But the Internet has proven to be a mixed blessing. Because it is a vast, unregulated force, it has increasingly become a tool for criminals.

A few months ago, a computer hacker accused of an Internet crime spree allegedly copied the credit-card account numbers of 20,000 customers from the computers of Netcom Communications Services Inc., an Internet-access provider. Last November, someone infiltrated Internet-linked computers owned by General Electric and purloined research materials and passwords.

In 'Salami slicing," thieves regularly make electronic transfers of small change from thousands of accounts to their own, and get away with it because most people don't balance their checkbooks to the penny.

With all the media hype, home computer hobbyists as well as businesses are rushing to access the Internet. But they do so at their own peril.

As Ian Murphy explains, once Internet saboteurs gain access to your computer system, they can wreck havoc. They can induce virus-caused file destruction and disk-drive failure. They can steal all your computerized account numbers, balances, personal and business information.

"As soon as you connect your computer to another one," warns Murphy, "you're in a world of trouble."

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