The overwhelming majority of laptop searches at the border turn up no evidence of crime, according data presented by Deputy Commissioner of Customs and Border Protection, Jayson P. Ahern.

At a panel discussion on October 20, Ahern revealed that of the 169 laptops searched at the border in August 2008, only two were seized – a mere 1.4% “hit rate.” Another 10 computers were “detained” for further analysis, such as language translation and decryption, to determine whether they contain evidence of crime.

Under Customs’ laptop search policy– first revealed on July 16, 2008–computers, other digital media, and documents can be searched at the border with no individualized suspicion at all, and can be seized as evidence only when a Customs agent determines that there is probable cause. The policy permits agents to conduct the search without having either evidence of wrongdoing or even approval of a supervisor. It authorizes Customs agents to copy the contents of a laptop or other digital medium and send it to a distant location where persons unseen and unknown to the traveler decrypt and translate data in the laptop, and it permits Customs to “detain” the computer for weeks or for months while this occurs.

A 1.4% hit rate means that a very intrusive search is being visited on passengers who have done nothing wrong, and strongly suggests that Customs should re-evaluate its laptop search policy. Indeed, of the two computers seized in August, neither was seized because a search of the computer’s hard drive revealed evidence of crime. One of the computers was outfitted to hold drugs instead of data, the other computer was itself contraband.

In other words, all of the searches of laptop data at the border in August 2008 turned up nothing.

Customs argues that the chances that a particular traveler’s laptop will be searched are remote: of 38,050,654 people and conveyances (mostly automobiles) encountered at the border in August 2008, only 169 of those encounters resulted in a laptop search. But it is also quite rare that a laptop search reveals evidence of crime. Perhaps if some criteria were imposed – such as reasonable suspicion, as proposed by Sen. Feingold in the Traveler’s Privacy Protection Act – it would be more likely that the right laptops would be searched.

Every fisherman knows: if you cast a big net often enough, you’re going to catch some fish. The trick to fishing, though, is to catch the right fish, avoiding the dolphins. The Customs laptop search policy keeps catching the wrong fish.

Google, the Authors Guild, and the Association of American Publishers announced a tentative settlement yesterday in the class action lawsuit over Google’s efforts to create a search engine for books. It’s a long settlement and there is plenty to read through and analyze. But on first blush, it appears that there is a lot to be enthusiastic about from a public interest standpoint. The public will get broader online access to books, including not just search capability, but also more substantial excerpts to browse and the option to purchase full text. Libraries and universities will be able to offer full text electronic access to patrons and students. And book authors and publishers should enjoy new revenue opportunities in connection with new ways for readers to find and access their work. A new entity called the Book Rights Registry will collect and distribute the revenues. A great deal of this is not possible today, and would not have been possible even if Google had litigated this case to the end and won an outright victory. Of course, forestalling an actual legal decision also means that the fair use questions at the heart of the lawsuits won’t get resolved. Details regarding the settlement can be found at the author’s guild Web site and that of Google Book Search.

In broad strokes, the lawsuit was about whether the inclusion of books in Google’s search database should be subject to opt-in or opt-out choice on the part of rights holders. Authors and publishers argued that Google needed to get affirmative permission from the individual copyright holders before including each book in the database. Google said that was so cumbersome it would sink the project. It wanted to include books unless and until the relevant copyright holders asked for them to be excluded. Under the settlement announced yesterday, there’s a sort of compromise.
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The next president has the chance to make his administration the most transparent in history. In our agenda for the next president, we have urged the next administration to reach for this goal. The public has the right to know much of the information collected, disseminated and maintained by the government, but currently there is a presumption to withhold that information. In order to increase accountability, public awareness, and citizen participation the next administration must reverse the trend to withhold information.

The Internet is an ideal tool to increase access to information. Citizens can use it to interact with government agencies, find important documents, and keep tabs on their elected officials. The E-Government Act of 2002 made key government information available on the Internet, and encouraged federal agencies to continue making information available as they maintained a presence on the Internet. Unfortunately, some agencies are not as adept at using these digital tools; that circumstance actually means a great deal of progress that can be made by the next president to encourage the openness and transparency of the federal government.

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This week, a diverse coalition of leading information and communications companies, major human rights organizations, academics, investors and technology leaders launched the Global Network Initiative. The initiative seeks to help information and telecommunications companies chart an ethical and accountable path forward through the growing demands from countries to take actions that infringe on the freedom of expression and privacy rights of their users. Equally important, the initiative intends to engage in collective action to promote the rule of law and the adoption of public policies that protect and respect core human rights on the global network. Three technology giants (Google, Microsoft and Yahoo!) have shown critical leadership by committing to the Initiative, and others both here and in Europe are likely to join in the coming weeks and months.

While there will be an understandable temptation to dub this effort as “China principles” given the challenges faced by U.S. technology companies operating there, such a characterization would miss the point. Technology companies are under increasing pressure from governments all over the world to participate in network censorship and otherwise comply with laws that are outside the bounds of internationally recognized human rights standards and norms with respect to users’ free expression and privacy. While China is perhaps the most familiar or visible example, recent reports from the OpenNet Initiative make clear that Internet censorship and surveillance are a growing concern all over the world. These are global issues and this is an initiative with global application—and yes, that does include the United States.
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A new wave of interest has been building around e-Rulemaking, and the ABA has released a report on the topic by a star-studded committee. I’ve written about regulations.gov before, as they unveiled new, citizen-centric features to make the site easier to use for the public. The newly released report, and those speaking about it, have both praise for the incredible progress that has been made, and suggestions that will improve e-Rulemaking for everyone.

The speakers were quick to commend the regulations.gov team, who have made e-Rulemaking a vital part of both government services and citizen participation. However, with great success comes more demand; there is a demand for a better, more feature-filled e-Rulemaking platform that actively enhances citizen participation. This is one of the greatest signs of regulations.gov’s success. When regulations.gov was conceived, there was not a system serving this purpose. The e-Rulemaking team had to come up with one and try it- there were understandable roadblocks encountered, but regulations.gov is now an indispensible part of the rulemaking process.

With that said, the report brings up many fantastic suggestions that could greatly improve regulations.gov and e-Rulemaking. The primary goal of e-Democracy, and e-Government, should be encouraging broader and better citizen participation, helping people outside government understand decisions as well as helping government get all points of view. By streamlining and improving the process, everyone wins.
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Major car insurance companies, such as Progressive and GMAC, have recently begun offering “pay-as-you-drive” (PAYD) programs. To participate, drivers connect a device to their vehicle that monitors mileage, speed, time of day, hard braking, quick accelerations, and other data points. This information can be sent wirelessly to the insurance company, and drivers’ premiums are adjusted accordingly.

So now when some crazed fool suddenly cuts you off and you brake hard in response, that other motorist is costing you money in addition to endangering you.

Depending on the program, participating drivers can access their driving data on a secure website, which could also enable parents to check up on teens’ driving habits. Most PAYD programs don’t track location yet, and the California Insurance Commissioner, a proponent of PAYD, is against location tracking in order to foster public trust in the programs. However, the GMAC service relies on the OnStar system, which can track location. Allstate is also developing a GPS-based PAYD system.

Industry spokespeople recognize that some view the service as an invasion of privacy, but contend that people are willing to give up privacy to save money. The companies offering PAYD do have privacy policies and allow participating drivers to cancel the program at any time. The policies also point out that the information can be shared in response to a subpoena, or with the driver’s consent. But subpoenas can come from a variety of sources, such as divorce lawyers, and other privacy contexts show that consent is a problematic data safeguard. We shall see whether this data will be put to other uses in the future, like pollution monitoring for the purpose of assessing a carbon usage tax.
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Health information technology - including electronic medical records, electronic health information exchange, and personal health records - have the potential to dramatically improve our health care system. Survey data shows that the public clearly wants electronic access to their health information - both for themselves and their health care providers. At the same time, people have significant concerns about the privacy of their health information on-line. In one recent survey, 67% of respondents were either “somewhat” or “very concerned” about the privacy of their personal medical records.

The failure to address public concerns about the privacy of their health information could have significant consequences. Without appropriate protections for privacy and security in the healthcare system, patients will withhold information from the health care providers - or decide not to seek treatment - because of fears about how their personal health information could be misused. Ignoring concerns about privacy - or inadequately address them - will significantly threaten public trust in these new e-health technologies, and in our overall healthcare system.

Privacy concerns are often described as an “obstacle” to moving forward with health IT. In fact, the opposite is true. Building privacy and security protections into e-health systems is the key to accelerating the adoption of health IT.

Next week we have a unique opportunity to make our voices heard on the importance of protecting privacy in health IT, and what policies and technical tools need to be adopted in order to build public trust. Beginning October 27, and continuing throughout the week, advocates and citizens will engage in an on-line discussion about how we can use information technology to improve healthcare while safeguarding privacy.

Find out more at by logging on to the National Dialogue Web site.

The results of this online dialogue will be compiled into a report to the Federal CIO Council and the incoming administration. This unique experiment in democracy is hosted by the National Academy of Public Administration, a non-profit, non-partisan organization focused on good government, in partnership with AmericaSpeaks and Delib. CDT will be logging on thoughout the week to provide comments, and we encourage you to do the same.

The “open” nature of the Internet is a core issue for CDT – just check out the tag line right next to our logo. It should be a cornerstone of the next president’s Internet-related policy as well.

First things first: What does the term “open” even mean in this context? Above all, it means that the Internet has minimal entry barriers and no “gatekeepers” controlling what is allowed or how services or technologies must be designed. Users can communicate with whomever they choose, in whatever manner they choose. And because the technical protocols are standardized and public, anyone with a good idea can create a new service or application and offer it to a worldwide audience, without needing permission from network operators or governments.

This “open” architecture is what has enabled the Internet to foster such tremendous innovation. It empowers and harnesses the creativity of millions of decentralized users, from major corporations to dynamic startup companies to individual inventors and students. They all have a chance to give their ideas a shot – because nobody dictates which new services or technologies will be allowed or how those technologies must be designed.

So what does this mean for the next president? How can the president ensure that this powerful engine of innovation keeps humming?
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A recent exchange of letters between the McCain campaign and YouTube offers a clear illustration of the importance of fair use in protecting free expression — but also of the risk that the practical utility of fair use can be subverted by other copyright policies.

When CDT and others say that copyright policy raises free expression issues and requires a careful balance, this situation between the McCain camp and YouTube is the kind of thing we have in mind.

Apparently the McCain campaign has posted videos to YouTube that use short clips — some shorter than 10 seconds — of news broadcast footage as a basis for commentary and advocacy. That sure sounds like a classic example of fair use, meaning it should be permitted under copyright law. But the media companies that own the broadcast footage have gone ahead and sent takedown notices alleging copyright infringement, resulting in YouTube blocking access to the videos. The McCain campaign has written to YouTube asking it to review takedown notices aimed at videos posted by political campaigns and candidates and to reject notices that ignore obvious cases of fair use.
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Over the past few months, lawmakers on both sides of the Atlantic have been scrutinizing ISP involvement in online behavioral advertising, with three hearings in the U.S. Congress and multiple inquiries in the EU. For two U.S. firms, NebuAd and Adzilla, the spotlight seems to have shined too brightly. Both firms have lost their chief executives within the last several weeks. NebuAd is currently revisiting its business plans, while Adzilla has shuttered its North American operations altogether.

The parting thoughts of Adzilla CEO Toby Gabriner may be instructive (though he certainly has reasons to be disappointed with the recent turn of events). In a New York Times Bits blog post last week, Gabriner expressed doubts about the value proposition for ISP-based behavioral advertising, which several major ISPs have all agreed should operate only on an opt-in basis. Gabriner explained that he doesn’t believe that “consumers want to opt in simply to get better ads.” We have long held the view that if companies are offering a service of value to consumers, then consumers should want to sign up. Adzilla was unable to identify something to bundle with their ad targeting to get consumer buy-in, and Garbinger clearly doesn’t think consumers value ad targeting enough on its own.

Gabriner also questioned whether consumers would even take note of the difference between behaviorally targeted ads and other ads, saying that a behavioral ad network “can only impact a certain number of ad impressions, and there is no way that an end user will see that [small number of ads] as better.” We have wondered about this as well: is the improvement of a behaviorally targeted ad over, say, a contextual ad enough for consumers to notice? At least one ad industry veteran doesn’t seem to think so.
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