U.S. Library of Congress Prints and Photographs Division (LC-DIG-ppmsca-06024)
U.S. Supreme Court Justice Louis Brandeis
Pick a network, any network. Now tap it. When the Taft Supreme Court made its first pass on the legality of electronic eavesdropping (Olmstead v. United States in 1928), the issue at hand was that of wiretapping. Today, however, communication by telephone is but one of many avenues to choose. There are many complicated issues in the discovery of communication for law enforcement and intelligence. Is Skype a phone call? Should Research in Motion open its BlackBerry databanks to foreign governments? Must Google pass along the search habits it knows about those who use its popular Gmail service? The U.S. government wants to use every possible means to collect evidence on the evil-doers out there, but what does it need from the IT sector to do it?
Apparently a great deal. The New York Times broke the news today that the Obama administration will announce its intent to “seek sweeping new regulations for the Internet, arguing that their ability to wiretap criminal and terrorism suspects is ‘going dark’ as people increasingly communicate online instead of by telephone.” U.S. law enforcement and intelligence agencies assert that their ability to follow criminals and terrorists is being thwarted by availability of an immense diversity of communication channels.
What the government claims to need are lots of backdoors into communications systems making it easier to track persons of interest and not lose them in the mass of digital content and traffic that is cyberspace. This is something our government has asked for before successfully, with CALEA (Communications Assistance for Law Enforcement Act) and unsuccessfully in the case of the Clipper chip. This latest initiative appears similar to the Clipper chip controversy, in that it would appear that the government desires to thwart the employment of encryption as a means to protect the confidentiality of messages.
While there is no reason to delve into the particulars of cryptography, the key point is that encrypted messages can take a significant amount of time and effort to crack, unless a backdoor is present to subvert that encryption. So, the U.S. government appears to be asking for some new backdoors. What this comes down to is an issue of individual liberty for the citizen versus our need for collective security from criminal and terrorist acts. Do the American people have the right to lock up their ideas and exchanges with cryptographic tools or not?
I would tend to side with Justice Louis Brandeis, who dissented with the court on the Olmstead decision (See my expanded thoughts here). He remarked:
“The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home…Can it be that the Constitution affords no protection against such invasions of individual security?”
What secret drawers do we really have left?
Christopher Bronk is the Baker Institute fellow in information technology policy. He previously served as a career diplomat with the United States Department of State on assignments both overseas and in Washington, D.C.