9.25.08 WATCHING THE DETECTIVES

There’s a couple of things swirling 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, of 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 to require 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 take 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 ‘90’s 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 do it 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 reargued to taken up 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?