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Internet Surveillance

The Securities and Exchange Commission plans to step up surveillance of online stock fraud by creating an automated internet surveillance system that would listen in on Internet message boards, Web sites and online discussions where stock tips circulate.

Earlier this year, the commission quietly asked more than 100 companies to come up with designs for such internet surveillance systems, which would scan the Internet for the words and phrases commonly used by scam artists. Many of those companies have complied with the request and are now testing those internet surveillance systems for the commission to review.

SEC officials said yesterday that they merely want to automate internet surveillance activities that their agents already engage in on a regular basis, freeing them up to do the harder work of interpretation and investigation. They cited 125 online fraud cases as proof that this internet surveillance pays off for consumers.

"All we're trying to do with the Internet is clean it up," said John Reed Stark, director of the SEC's Office of Internet Enforcement.

But the proposed internet surveillance system has sparked protests from lawmakers and privacy advocates alike, and goes to the heart of unresolved questions about the nature of speech on the Internet--is it the equivalent of a public park, or perhaps a conference call?

"After 25 years, things in that area really haven't been sorted out," said Lawrence Ponemon, the privacy czar for consultancy PricewaterhouseCoopers.

Ponemon's company declined to file a proposal for the internet surveillance system, deciding that it raised too many questions about constitutional rights. Officials determined that any such internet surveillance system would require putting silent monitoring software into Internet sites--"like wiretapping, which would be a clear violation of search and seizure [rules] in our mind," he said.

Still, Ponemon said, despite PricewaterhouseCoopers' concerns about the mechanics of the internet surveillance system, "we think the SEC is actually doing the right thing in trying to improve its internet surveillance capabilities on the Internet."

The internet surveillance system requested by the SEC would automatically scan the online world for key phrases that are commonly used in fraudulent come-ons--phrases such as "make money NOW!" and "get rich quick!!!!!"--that have become as common on the Internet as photos of actress Pamela Anderson. The internet surveillance system would go beyond simple key-word searches currently used by agents scanning the Internet for likely scams, commission officials said.

The SEC expressed astonishment at the uproar over the plan, since the proposed internet surveillance system would merely automate information-gathering that is currently performed by human agents. "Our request for proposals makes it completely, absolutely clear that all you're searching for is stuff that's publicly available anyway," Stark said. "There's nothing in that request for proposals that says we're going to be looking at anything that we don't already look at anyway."

The commission has to work quickly to nab scam artists, and the internet surveillance technologies could help them actually prevent fraud instead of playing catch-up after the fact, he said.

"The SEC really has a long history of being very careful when it comes to people's rights," Stark said. "But we're not going to tolerate people trying to lie, cheat and steal--we're going to continue a policy of zero tolerance."

In fact, considerations of privacy rights and Fourth Amendment rights against unreasonable searches by the government are discussed in the Federal Register documents outlining the SEC proposal. The plan, funded by a $12.5 million appropriation from Congress, explicitly states that contractors should only gather information "on publicly accessible Web sites and news and message servers. Contractor shall not capture private e-mail correspondence, transactions and communications," or capture the kind of information that might show who has been visiting a particular Web site without posting messages.

The SEC request for proposals, which was the subject of a story in the Wall Street Journal, has already met with opposition from privacy activists and at least one privacy-minded lawmaker.

"No government agency should be able to just go in with a vacuum and scoop up information with internet surveillance technology just because there might be something in there that they might consider against the law," said Rep. Robert L. Barr Jr. (R-Ga.), who yesterday sent a letter to SEC Chairman Arthur Levitt Jr. criticizing the program. Barr, who compared Internet discussions to telephone conversations, said that he was fully aware of promises by commission officials that any information not pertinent to investigations would be discarded and that privacy rights would be scrupulously observed.

"The history of watching this sort of stuff does not lend itself to a great deal of trust," he said. "It's just too easy to abuse." Barr said that he has asked Rep. Charles T. Canady (R-Fla.) to take up the matter of Internet surveillance before his Judiciary subcommittee on the Constitution.

Marc Rotenberg of the Electronic Privacy Information Center, a Washington-based policy group, said that all such internet surveillance raises fundamental questions about the Internet.

"There's a critical issue here of what constitutes a search," Rotenberg said. Even if an online discussion is like an FBI agent attending a public rally and taking notes, there are rules that govern the agent's activities. If engaging in online discussions is more like a party-line telephone call, however, that would fall under rules that apply to searches and tapping telephones--and the requirement of search warrants and court authorization.

"If it's not a search . . . we need to think about what constitutes a search in the digital age," Rotenberg said. "There's something wrong if a federal agency can collect so much information on so many people without legal authorization and without consent."

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