2006 Election’s Impact on Privacy & Surveillance

Wired details the potential impact the Democratic takeover of Congress will have on technology devopment, use and policy. Specific attention is paid to privacy and surveillance technologies:

[I]t’s unlikely that Democrats — facing a presidential election in 2008 and fearful of looking soft on terrorism — will be rewriting the Patriot Act any time soon. Instead, they will probably save their ink for subpoenas and opening statements at hearings into the Bush administration’s anti-terrorism policies.

Voters issued a pink slip to Ohio’s Dewine and Rep. Curt Weldon of Pennsylvania, two high-profile supporters of the administration’s data mining programs and secret warrantless eavesdropping on Americans. Dewine authored the first bill attempting to legalize warrantless eavesdropping. New Mexico Rep. Heather Wilson, whose bill authorizing NSA wiretapping of Americans and immunizing cooperative telecoms was passed by the House in late September, was hanging on to her job by a slim margin early Wednesday.

The fallout from Tuesday’s election will not come in the whip count, but in the Democrats taking over committees in the House and Senate, where they can dust off the subpoena and hearing powers left largely unused by the Republicans, according to civil libertarians such as former Clinton administration privacy czar Peter Swire.

“For instance, Congress cancelled the Total Information Awareness program, but the program seems to be continuing under other names,” Swire said. “So with control of even one house, the Democrats can issue subpoenas and right now the biggest single power of being in the majority is power to issue subpoenas.”

Some of the first subpoenas could come from Sen. Patrick Leahy (D-Vermont), an outspoken privacy advocate likely to head the Senate Judiciary Committee. He would replace Sen. Arlen Specter (R-Pennsylvania), who first threatened to subpoena the administration over the NSA program, then reversed himself and co-wrote a bill with the White House that removed almost all restrictions on the president’s wiretapping powers. On the House side, John Conyers (D-Michigan) will take over the Judiciary committee from James Sensenbrenner (R-Wisconsin), one of the Patriot Act’s greatest champions.

Joe Lieberman, the longtime Democratic senator from Connecticut who won as an independent on Tuesday, is in line to take over the Homeland Security Committee, replacing centrist Republican Susan Collins of Maine. Lieberman promises to caucus with the Democrats and their razor-thin majority in the Senate means the party can’t afford to alienate the hawkish backer of the war. This gives him near-veto power over the Democrats since he could easily switch sides and hand control of the Senate back to the Republicans.

Collins and Lieberman have long worked closely and there is unlikely to be much change in oversight here. Lieberman, like Collins, is tough on mismanagement and a stickler for written privacy policies, but neither reacted strongly when Homeland Security officials gave them false sworn testimony about privacy breaches.

The new Congress is likely to include oversight of a health privacy law, known as HIPAA, in the House Energy and Commerce Committee, where the feisty John Dingel is expected to take over and ally himself with muckraking Democratic Reps. Ed Markey and Henry Waxman. They’ll have plenty to work with, as there have been some 20,000 violations of the complicated statute, according to Swire.

Long-pending data breach legislation, which privacy advocates have criticized for overriding stronger state laws, will likely be rewritten by Barney Frank, the liberal Massachusetts congressman slated to take over the House Financial Services Committee. He’s unlikely to be as sympathetic to the data brokers and credit issuers as his predecessors were.

Finally, telecoms have been angling to win immunity from the 20 or so class-action lawsuits filed against them for allegedly violating customer privacy by helping the government eavesdrop, without warrants, on e-mail and phone communications. While there’s a small possibility the lame-duck session of Congress that starts next week could slide that into a spending bill, Tuesday’s devastating defeat makes it more likely the telecoms will have to continue their court battles.

UPDATE: Also, Siva Vaidhyanathan points to William McGeveran’s analysis of the election’s impact on IP and technology law. Siva will have his own column on the impact on the Internet soon…

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