It’s a Problem With Law, Not Technology

Early pioneers of cyberspace reveled in the anonymity and potential.  The feeling of “wild west” style lawlessness was a bit of a rush—all that space and no one to answer to.  That was then…

but this is now. If you are under any impression that things are still like that, check out some of the stories circulating lately on the FBI’s desire for a “wiretap ready” web.  Back in February, FBI general counsel Valerie Caproni complained that criminals no longer used the technologies that law enforcement could legally intercept.  As a result, it is easy for criminals to “go dark” and avoid the kind of surveillance in the analog world that is routinely used to catch criminals before the act.

Declan McCullagh at Cnet is now reporting that:

The FBI general counsel’s office has drafted a proposed law that the bureau claims is the best solution: requiring that social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail alter their code to ensure their products are wiretap-friendly.

“If you create a service, product, or app that allows a user to communicate, you get the privilege of adding that extra coding,” an industry representative who has reviewed the FBI’s draft legislation told CNET. The requirements apply only if a threshold of a certain number of users is exceeded, according to a second industry representative briefed on it.

In this case, I am of two minds.  First, privacy is important to human flourishing.  In a great (academic) article in The Heythrop Journal (vol. 51, 2010, pp. 288-297), Hayden Ramsay outlines the way in which privacy is a structural precondition for a variety of aspects of human life.  Privacy is not just about freedom from restraint.  It is also about the necessity of solitude for spiritual and intellectual development; the necessity of space to experiment for social and linguistic growth; the necessity of a private home environment for solid relational and personal development; and the sanctity of personal conscience. An admittedly elusive concept, privacy is important to integral human development (that people often fail to appreciate).

At the same time, protection and safety of society is also an important social good. Growing up a worrier in a “first strike” city in the nuclear-war-ready 80s, I know a (very) little bit about how disruptive living in fear can be.  Threats make us nervous, which is not good emotionally, but also hampers the commerce necessary for the economic well being of a community.  And, needless to say, the harm inflicted when plans are carried out is also a bad thing.  Law enforcement needs the ability to investigate potential threats.

The reality is that the telecoms had the technical structures to do wiretapping built into the previous generation of equipment.  The current proposals would continue this technical ability.

The problem here is not the technical side, but the legal side.  It used to be that law enforcement had to obtain a warrant for a wiretap.  Over the past two administrations, court oversight of law enforcement has waned, regularly going around the FISA and other courts to surveil digitally.  The key sticking point in opposition (even the President’s) to CISPA is the provision that telecom companies will hand over user data at pretty much any request.   This trend goes back a couple years to previous legislation that indemnified ISPs from lawsuits from customers for handing over data to law enforcement.  These days, law enforcement is moving to download data from gadgets faster than courts can tell them they aren’t allowed, and lawmakers are having a hard time keeping up.

The issues isn’t the tech, it’s reining in good intentioned law enforcement from going too far.  The lure of stopping crime is huge, and noble.  But giving up our ability to flourish as human beings is a high cost to pay.  There has to be a middle ground.

Speaking of high cost to pay, if you’ve ever wanted to know how much a wiretap costs, check out this story from Andy Greenberg at Forbes.

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