Cyber Hearing Postponed To Remember Judge, Online Privacy Advocate

Senate Commerce Chairman Jay Rockefeller has postponed a computer security hearing to attend the funeral of Judge M. Blane Michael, a proponent of digital privacy who served as Rockefeller's special counsel during his first term as governor of West Virginia, aides for the senator said on Monday.

Rockefeller, D-W.Va., has not yet announced a new date for the hearing, previously scheduled for Wednesday, which was to examine the economic ramifications of cyber threats in the private sector.

Last year, Michael, who sat on the U.S. Court of Appeals for the Fourth Circuit in Richmond, lectured to students at his alma mater New York University School of Law that the Internet may undermine the Fourth Amendment's search and seizure protections: "The digital age is placing our privacy in jeopardy. Technological advances in the way we communicate and store information make us increasingly vulnerable to intrusive searches and seizures."

The disconnect between analogue-era privacy and communications laws and the evolving, online nature of criminal activity has been the subject of several congressional hearings during the past year. Lawmakers are considering updating civil liberties legislation, such as the 1986 Electronic Communications Privacy Act, as well as establishing new computer crime rules as part of comprehensive cyber legislation.

During his speech, Michael noted that people store their digital files, including love letters, diaries and financial records, on an Internet service provider's remote server, so that they can access their documents from any computer.

"But online storage also raises questions about whether we retain any Fourth Amendment privacy interest in files once we store them remotely because they are then technically accessible to the Internet service provider," he said.

Michael cited a case that involved the government's seizure of Google's email servers, which house millions of people's personal data, just to look for just a few incriminating messages.

"In evaluating whether there is a privacy interest in personal files stored online, the current framework leaves room for considering other sources of interpretation, including the Fourth Amendment's formative history and contemporary norms and circumstances," he said.

On Friday, Rockefeller said in a statement that Michael was unvarnished in his honesty, uncanny in his humor and unequaled in his humility. He called him "a brilliant judge who never took for granted the power and the responsibility of deciding the cases that impacted people's lives or righted serious wrongs.

"I will be forever fortunate to call him my dearest friend and confidant - the kind you just trust to his very core and whose deep, easy companionship abides with you for a lifetime," he said.