ACLU Attorney Fights Digital Surveillance
NEW YORK - Barry Steinhardt is paid to be paranoid.
The American Civil Liberties Union's cyberchief holds up his Handspring Treo, a combination organizer, phone and e-mail gadget, as he describes the many ways his government might spy on him.
Snoops could try to tap into the calendar to see his meeting schedule. They could ask his service provider for phone and e-mail records. If Steinhardt were to upgrade to a device with global-positioning capabilities, investigators might even track his whereabouts.
Though the government isn't necessarily doing any of this, Steinhardt fears it's just a matter of time.
Since the Sept. 11 attacks, trying to beat back a technology-propelled surveillance society has been Steinhardt's No. 1 mission. He believes he will probably lose - but not without trying to at least win greater court oversight or other limits.
"We are moving at a warp speed," Steinhardt said at ACLU's national headquarters, a lower Manhattan office with a Statue of Liberty view. "The surveillance monster is growing, but the legal chains to these monsters are weakened even when we should be strengthening them."
Every movement, utterance and thought could perhaps be tracked one day, Steinhardt warns, ultimately making people more afraid to speak their minds - a fundamental right the ACLU has sought to protect long before anyone at the group had heard of the Internet.
The building blocks of a surveillance society include high-tech security cameras that promise to instantly match images of people walking by with those in databases. Interest in such cameras grew after the attacks.
Law enforcement won greater authority to monitor telephone conversations and e-mail when Congress swiftly passed the USA Patriot Act after Sept. 11. The ACLU and other groups have filed lawsuits, though the Supreme Court rejected one challenge last week.
Steinhardt identified other emerging threats to privacy and speech:
Research headed by John Poindexter, a former national security adviser, to develop Total Information Awareness, a computer system to mine phone, credit card and other records in hopes of spotting clues and patterns to identify would-be terrorists.
Draft legislation in the Justice Department calling for, among other things, a DNA database of "suspected terrorists" and extended penalties for scrambling communications in the commission of a crime.
A new airline-passenger screening system, called CAPPS II, to check such things as credit reports and consumer transactions and compare passenger names with those on government watch lists.
These items are expected to come up for discussion during the annual Computers, Freedom and Privacy conference, which begins Wednesday. Steinhardt is chairing this year's conference.
Steinhardt, 50, got his first taste of the threats to civil liberties when, as an eighth-grader, his Bridgeport, Conn. public school tried to make him read a religious poem at graduation. The ACLU intervened and won.
He spent the 1980s with ACLU chapters in Vermont and Pennsylvania and joined the national office as associate director in 1991. His focus on technology began in 1994 while other civil-liberties advocates were fighting Carnegie Mellon University's efforts to restrict Usenet newsgroups because some carried pornographic images.
"That was the eureka moment for me, that this would become the medium for speech and the medium for political action," Steinhardt said.
Marjorie Heins, an ACLU lawyer at the time, said Steinhardt got the organization to start thinking about technology "when a lot of us were barely beginning to get e-mail accounts."
By 1996, the ACLU played a central role in challenging the Communications Decency Act, Congress's first foray in regulating online porn. The Supreme Court struck down the law in 1997 on First Amendment grounds.
"The ACLU arrived at the juncture of civil liberties and technology a little late, but he has gradually turned the ACLU into a force," said Stewart Baker, who heads the tech law practice at Steptoe and Johnson.
Mike Godwin, a former staff lawyer with the Electronic Frontier Foundation, said that by bringing the ACLU to the table, Steinhardt gave clout to what civil-liberties groups like Godwin's were doing.
"They had litigation teams that were able to essentially field challenges all over the country," Godwin said. "None of those little startup organizations had the manpower or money to do that."
Even adversaries respect Steinhardt's conviction.
Bruce Taylor, who has often sparred with Steinhardt over regulating online pornography, credits him for improving the quality of discussions. Before proposing any restrictions, Taylor made sure his arguments were sound because "you know he will criticize it, and you will have to justify it."
Steinhardt took a leave in 1998-99 to head the EFF. In 2002, as his attention turned to fighting post-Sept. 11 surveillance measures, Steinhardt launched a program on technology and liberty at ACLU.
Peter Swire, former President Clinton's chief privacy counsel, said the ACLU's prominence grew with the shift to surveillance.
"You might call it a switch from offense to defense," he said. "Offense was, from the ACLU's perspective, expanding civil liberties. Now, given the pressures to address terrorism, the debate is (about) what new authorities the government is going to get."
Lately, that has meant moving the focus away from balancing security and liberties, a debate more difficult for Steinhardt in a security-obsessed atmosphere.
Instead, Steinhardt has been questioning the effectiveness of certain high-tech crime-fighting tools. He notes, for instance, that someone can fool face-recognition cameras by donning sunglasses.
"You can't get into a false debate here between security and liberty if there's no security benefit," Steinhardt said. "Of course, by the time we figure that out, it may be too late. We may have already bought into the surveillance society."
Steinhardt said lawmakers and the general public have begun to question security initiatives.
In February, Congress passed a law slowing down research on Poindexter's database project until the Pentagon assesses privacy, scope and other matters. The law also requires congressional approval before implementing the system.
"There's reason for optimism here," Steinhardt said, "but these are extraordinarily difficult times for civil liberties."
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