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Fred Cate
Director, Center for Applied Cybersecurity
fcate@indiana.edu

James Boyd
IU Maurer School of Law
joboyd@indiana.edu
(812) 856-1497

Last modified: Tuesday, March 30, 2010

Pennsylvania school laptop case illustrates need for updated privacy laws

FOR IMMEDIATE RELEASE
March 30, 2010

BLOOMINGTON, Ind. -- Indiana University Maurer School of Law Distinguished Professor Fred H. Cate testified yesterday (March 29) that a Pennsylvania school district's alleged monitoring of students via school-issued laptop webcams is only the most recent in a series of incidents demonstrating the clear need to overhaul and modernize American federal privacy laws.

Cate, director of the IU Center for Applied Cybersecurity Research, was invited to testify as an expert witness at the U.S. Senate Committee on the Judiciary Subcommittee on Crime and Drugs field hearing held in Philadelphia. The hearing was chaired by Sen. Arlen Specter, D-Pa., chairman of the subcommittee.

The hearing was convened because of the recent case involving the Lower Merion School District's alleged monitoring of students in their homes through school-issued laptops.

Cate used the Pennsylvania incident to highlight three points: Title III of the Omnibus Crime Control and Safe Streets Act of 1967 (the "Wiretap Act") needs to be amended to include visual surveillance in addition to auditory surveillance; the alleged use of a laptop camera to monitor students' behavior shows the challenges new technologies present in our understanding and the law's protection of privacy; and there are many privacy protections that institutions can adopt to reduce the impact of surveillance technologies, even if not required by law.

The Wiretap Act was designed to regulate only the interception of communications. Over the years, it has been updated to apply to e-mail and certain face-to-face communications, but it still does not extend to cover only silent surveillance. Cate argued that the law needs to be updated to reflect the scope of modern technology.

"To avoid this gap in the future, it will be necessary to amend the Wiretap Act to apply to visual surveillance as well as auditory surveillance," Cate said. "But doing so will not be as simple as it may seem, because the Wiretap Act deals with intercepting communications between parties, and not the observation of a person or setting. What is clear is that the gap needs to be closed so that federal protection against the secret collection of pictures and videos does not depend on the happenstance of whether sounds are collected at the same time."

Cate's testimony also highlighted the gap between rapid technological advances and the laws that lag behind in their governance.

"Law almost always lags behind technology and society," Cate said. "Individual courts and states are struggling to figure out how to apply old laws to new challenges. But it is increasingly clear that the thoughtful intervention of Congress is necessary."

Finally, Cate noted the responsibility organizations have to set privacy standards on their own, rather than wait for government to enforce.

"For example, a school district, any school district, considering activating built-in cameras in laptops supplied to students would be well advised to ensure that they have a written policy in place governing the terms under which cameras will be activated, the use that will be made of any images captured, how long those images will be retained, and under what conditions they will be shared with third parties, including law enforcement," Cate said. "Protecting privacy is the responsibility of all responsible organizations, especially those in the public sector."

Cate concluded his testimony by calling on Congress to make significant changes to existing privacy laws.

"(Video laptop surveillance) is an important issue in its own right and as part of a growing trend in which new technologies challenge increasingly outdated privacy laws," he said. "I urge you and your colleagues to begin the vital process of not only closing gaps in the Wiretap Act, but also of more broadly updating federal privacy laws for the 21st century."

Cate's testimony, together with that of the other witnesses, is available at http://judiciary.senate.gov/hearings/hearing.cfm?id=4492.

Cate is a Distinguished Professor, the C. Ben Dutton Professor of Law, and an adjunct professor of Informatics and Computing at Indiana University. He is the founding director of IU's Center for Applied Cybersecurity Research (CACR), a National Center of Academic Excellence in Information Assurance Education and in Information Assurance Research, and part of Indiana University's Pervasive Technology Institute. He is the president of the Phi Beta Kappa Society and an elected member of the American Law Institute.