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``` [The SEC's proposals compel us to decide what "public" and "private" mean in digitally mediated communication. If the SEC wants to send a bot rummaging through "public" newsgroups looking for get-rich-quick schemes, how is this any different from the SEC running each day's newspapers through on OCR scanner for the same purpose, or running a bot through the online editions of the newspapers? Surely for moral and legal purposes there is some kind of gradient here between the open-to-everyone, archived-forever, fully-searchable newsgroups and a traditional phone call between two parties who assume their interaction to be private. One issue is notification: it is notorious that many people in online environments don't understand how "public" their interactions are. But it's not just notification, or else the state could simply put us all on notice that the Fourth Amendment has been repealed. Partly I struggle with the issues of sympathy (or the lack thereof) that are not supposed to influence Constitutional judgements: I think that way too many people conduct sensitive business in public online forums when they should be taking the trouble to build private associations (friendships, clubs, networks) and the private forums to go with them, and consequently I have trouble feeling that bad about the privacy of public discussions of the stock market. But that's not a serious analysis either, because it doesn't tell us where the line between "public" and "private" lies. Is a moderated newsgroup "private" from the relevant moral or legal standpoint just because someone exerts editorial control over it? Well, no, because then a newspaper would be private. Is a newsgroup "private" if someone exerts control over who can read it? Is it still "private" if that person routinely accepts every prospective reader who applies, only expelling the ones who make trouble? If a bot can get in to a newsgroup without subverting its security, can we conclude that the group is "public"? Would it be okay for the SEC automatically to scan Web sites that advertise themselves as "newsletters"? But then many print newsletters have very restricted circulation because their value lies in the exclusive possession of the information they report. Are they now "private"? The law needs to draw lines, and it doesn't always draw them in ways that normal people find intuitive. It has often been observed that the net makes it hard to draw lines by making it easy to populate the entire space of possibilities: no natural dividing lines are available. That may be true in principle, but in practice we see something even harder: a remarkably small repertoire of technical mechanisms that people put to a wide variety of uses without always thinking clearly about what they are doing. If the SEC's proposals force us to clean up our act conceptually, then they might be doing us a favor.]
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Date: Tue, 28 Mar 2000 14:23:02 -0500
From: "Alexander, Brad"
The letter below responds to reports by the Wall Street Journal today describing an SEC online monitoring plan that would sift the Internet for key words, and save content containing them for enforcement action.
March 28, 2000
Mr. Arthur Levitt, Jr. Chairman Securities and Exchange Commission 450 5th St NW Washington, D.C. 20001-2739
IN RE: Online Fraud Monitoring
Dear Chairman Levitt:
As a Member of the House Banking and Financial Services Committee, I write to express my concern with reports that the Securities and Exchange Commission (SEC) plans to implement an automated system for monitoring Internet speech on a massive scale. In light of the serious constitutional, legal and policy questions raised by such a system, I urge you to reconsider this plan.
To use an analogy based on current practices, the fact that telephones may be used to commit fraud does not entitle the FCC, the FBI, or the SEC to engage in wholesale monitoring of all telephone conversations. Instead, you are required to go before a court, meet constitutional and statutory requirements for a warrant, and listen only to specific conversations pursuant to the court's order. This system may seem inconvenient to you at times, but it has done a remarkably good job of protecting the privacy of American citizens without unduly hampering law enforcement. It is difficult to argue we should discard it, and adopt a new system of widespread monitoring, simply because new technologies make such monitoring possible.
The system you are reportedly contemplating would turn current practices upside down by monitoring large portions of online speech without a court order, and sifting through that speech for items of interest to your or some other federal agency. Engaging in such a wide level of monitoring will have a chilling effect on free speech online. Furthermore, it seems likely experienced criminals can easily avoid such well-publicized and widespread monitoring, by simply encrypting their data or conducting business from offshore havens.
While I understand the need to prevent securities fraud, federal agents should not be allowed to sift through the conversations of millions of innocent parties in order to do so. I urge you to reconsider this plan and adopt a system that is narrower in scope, and complies fully with constitutional guarantees, as well as existing statutory protections.
With kind regards, I am,
very truly yours,
Bob Barr Member of Congress ```
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