by Mark Nestmann

If you’re like me, your personal computer and the Internet are indispensable tools, both personally and professionally.

Why bother with a letter when you can dash off an e-mail and send it, virtually effortlessly? Who wants to buy something at a store, in person, when you can shop online, in the comfort of your own home? And why set foot in a library when there are so many good online research services?

Unfortunately, governments—particularly the U.S. government—view the incredible convenience facilitated by these technological marvels as an opportunity to snoop into your private affairs. It’s not enough to have every aspect of your financial affairs under continuous scrutiny, courtesy of the USA PATRIOT Act and similar laws. Now, they’re pressing for “back door” access to your e-mail messages, your Internet browsing habits and the precise location of your cell phone. And they’re doing it in a very sneaky way.

Internet Crime Fighting Treaty Opens Your Computer to Foreign Snoops

A treaty you’ve probably never heard of could force you to hand over to the government every secret document on your PC, without a warrant! And that’s just the beginning!

The treaty is called the Council of Europe Convention on Cybercrime. Deep-pocket entertainment companies want it in force so they can crack down on “file sharing” and other supposedly nefarious activities carried on (mostly) by teenagers. Law enforcement authorities in the United States and Europe say that it’s essential to fight the “War on Terror”. And the Bush administration has endorsed its ratification by the U.S. Senate.

However, there are serious reasons to question the assertion of one of the treaty’s leading backers, Sen. Richard Lugar (R-IN), who states, “Prompt ratification…will help advance the security of Americans.” That assertion is particularly questionable since the treaty both lacks a requirement for “dual criminality” (i.e., that an offense be illegal in both countries in order for an investigation to take place) and also permits one country to conduct covert surveillance on Internet users in another country. If the Senate ratifies the treaty, foreign governments could legally conduct covert surveillance on Americans’ Internet use and even require the U.S. government to prosecute U.S. persons for violations of foreign laws!

In China, for instance, strict Internet censorship laws apply. A reporter was recently sentenced to 10 years imprisonment for posting a news report on a “blog” without prior approval from the Communist Party Propaganda Department. The news item wasn’t sensitive information about China’s nuclear weapons program. The journalist, Shi Tao, was imprisoned for sending foreign websites a copy of a message from Chinese authorities warning domestic journalists about reporting on sensitive issues. The Justice Department could also be required to prosecute someone in the U.S.A. pressing for women’s rights in Saudi Arabia or better treatment for Christians in Sudan, if these countries eventually ratify the treaty.

There’s more…

Article 14 requires countries to place a law into effect that would require disclosure of decryption keys. In other words, if you use a program like PGP on your PC to protect your files or e-mails from unauthorized access, the treaty would empower the government to order you to release them. No probable cause, no warrant…just give up your keys (thus giving investigators carte blanche to your files), or risk fines and imprisonment. Whatever happened to the Bill of Rights with its provision protecting your right to avoid self-incrimination?

Finally, the treaty contains absolutely no limits on the authority governments have to conduct coercive investigations of Internet users. If this treaty goes into effect, you will have absolutely no right to contest any investigative technique the U.S. government—or a foreign government—takes to seize your computer files, decryption keys, e-mail messages, or any other electronic communications.

The opinion pages of every newspaper in the U.S. should be howling about this treaty—but the silence is deafening. Sadly, in an era where Americans are more interested in Katie Holmes’ pregnancy than gross incursions on their civil liberties, perhaps it’s not that surprising.

I urge every Sovereign Society member to contact the Senate Foreign Relations Committee to express your outrage over this treaty (designated Treaty 108-11):

U.S. Senate Committee on Foreign Relations
Dirksen Senate Office Building
Washington, DC 20510-6225
Majority Phone: (202) 224-4651
Minority Phone: (202) 224-3953

See for yourself how politically untouchable bureau-rats want to eliminate your right to electronic privacy through the back door: read the treaty at: http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm. Read the official explanation of this treaty at: http://conventions.coe.int/Treaty/en/Reports/Html/185.htm.

Big Brother Outsources to Little Brother

Doesn’t it make you feel warm and tingly to know that the U.S. government is vigorously guarding your civil liberties? Yes, the laws to defend your privacy seem, at first glance, to provide a bulwark of protection:

• Fair Credit Reporting Act. This law, enacted in 1970 and significantly modified through amendments, prohibits government agencies from obtaining information about you from a credit bureau without your consent.
• Privacy Act. A legacy of the Watergate era and the Nixon administration’s “Enemies List,” this 1974 law prohibits government agencies from releasing information about an individual to any other person, or other government agencies, without the written consent of that individual.
• Right to Privacy Act. After the U.S. Supreme Court ruled that bank customers have no legal expectation of privacy for financial information held by financial institutions, Congress enacted this 1978 law. It requires government agencies to provide notice and an opportunity to object before a bank or other institution can disclose personal financial information to a government agency.

These all sound good—but there is a teensy-weensy loophole in these laws large enough to fly a 747 through: if the agency (such as the IRS or FBI) seeking information issues an “administrative subpoena,” these laws fold like a house of cards.

An administrative subpoena is a document signed by an investigator that requires the recipient to disclose any relevant information about the person or company being investigated. Administrative subpoenas are issued with no prior judicial, prosecutorial or grand jury approval, without probable cause and without a warrant. In some cases (such as the USA PATRIOT Act), a business receiving an administrative subpoena is prohibited from notifying its customers of the existence of the subpoena, and the entire process is carried out in secret.

But in recent years, government agencies have begun to complain about the burden of issuing administrative subpoenas, because the targets of their investigations sometimes have the temerity to challenge them.

For instance, you may have read about the libraries in Connecticut who challenged the FBI’s authority under the USA PATRIOT Act to issue a type of administrative subpoena called a “national security letter.” The libraries—the identity of which has been sealed at the insistence of the FBI—protested the fact that they weren’t able to speak out about the use of such national security letters during the recently-concluded debate over reauthorization of the USA PATRIOT Act.

A federal appeals court upheld the gag provision, and forbade the library from speaking out. But the poor dears at the FBI were monumentally inconvenienced by the libraries’ courageous stand.

In response, the FBI and other agencies have come up with a way to avoid the messy paperwork necessary to obtain an administrative subpoena: get private companies to do the FBI’s job for them!

For over 30 years, laws like the Bank Secrecy Act have required banks to report details of their customers' cash transactions to the Treasury Department. More recently, banks, brokers, real estate agents, money services businesses, casinos, and many other businesses have been required to report “suspicious transactions” to the Treasury’s financial intelligence unit, the Financial Crimes Enforcement Network (FinCEN).

But now, outsourcing intelligence gathering has taken on a whole new dimension. When you send a package by FedEx, for instance, you fill out the paperwork, pay for the shipment, and that’s the end of it, right? Well, not exactly. Indeed, FedEx and an increasing number of other companies now keep your personal information in a database and make it available to the FBI for “homeland security” purposes. No warrant, no probable cause…not even an administrative subpoena is required for the FBI to access the information.

“Outsourcing” intelligence gathering to private companies has many benefits from a government point of view. First, there are no messy laws or regulations to worry about because the customer consents to having the information released to the government under whatever contractual conditions apply. Second, private companies tend to do a much more efficient job than the U.S. government at spying on their customers. It gives “privatization” a whole new meaning!

But that’s just the beginning. A growing number of companies act as brokers for your personal information and sell it to the highest bidder. The most notorious of these is ChoicePoint, because its lax security recently allowed fraudsters to steal the identity of more than 145,000 persons whose records are in its databases. Among ChoicePoint’s largest customers are law enforcement agencies. And, while you’re legally entitled to a free copy of a limited number of reports that ChoicePoint provides to insurance companies, landlords or prospective employers, you’re not permitted to review the potentially much more damaging information provided to law enforcement agencies.

What You Can do to Protect Yourself

• Use encryption programs to protect your e-mail and confidential files. A good one is PGP (http://www.pgp.com).
• If you think you might be on one of ChoicePoint’s insurance, tenant or employee databases, get a copy of your record at http://www.choicepoint.com/factact.html.
• Review the contracts of Internet Service Providers, shipping companies, etc. to determine if you are giving them permission to share information with the government. If you are, consider using another company. (Incidentally, the U.S. Postal Service provides much stricter privacy protections than does FedEx, particularly for first-class mail.)
• Avoid the use of credit cards or checks for all but the most routine transactions. Financial transactions are among the most sought-after by government investigators.
• When in doubt, use cash. Begin stockpiling cash at home to use in place of credit cards and checks. But beware of large cash transactions (over US$3,000), which may, in some circumstances, be subject to mandatory reporting to FinCEN.

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