(to a friend, in response to his letter following this, and my letter at bottom.)
Generally, I agree with what you write below. So long as individual rights are protected -- and especially, in the context of surveillance, property rights -- I see no inherent problem in "surveillance". Where property rights are involved, search warrants are appropriate (the 1964 Supreme Court decision requiring them for wiretaps was correct, I think). This would apply to any kind of internet monitering from a private ISP. Of course, some valid standard for granting the warrant and the scope and extent of the electronic "search" must be established. I'm of mixed opinion on what that should be, but it's a fine point.
In the case of the internet, if an ISP was required to allow federal monitering of all its traffic, I think you can reasonably say that any information passing through is the ISP's property, in lieu of an agreement with subscribers otherwise, so the Feds should be able to legally moniter all of it. But what if there was some agreement that said the ISP was merely the "agent" of the information transmittal? There must be some case law applicable to "agents". I suspect a slightly more stringent standard for what can be monitered and what can't be monitered might apply, but in essence the agent would be regarded as the defacto property "owner" of the information while the information was on its system, so the monitering of all traffic could still be done. (And, how could there be an explicit assumption that the ISP is an agent? Most traffic comes from people the ISP doesn't even know (or whatever you call all those who route internet traffic). So in that case, I would say the ISP is responsible for whatever is going through their portal, and the warrant could examine anything.
As a side note, right now the ISPs / routers of internet traffic legitimately don't want to be subject to criminal prosecution for traffic through their servers. Some DA's have abused their power in that regard. I think a law that said an ISP is responsible t submit to a search warrant of all traffic on their systems is valid, but not a law that allows the ISP to be charged as an accomplice, merely for the information flow. This would put a break on abusive DAs. But again, this is a fine point of the law that could easily be resolved in some kind of objective society -- limit the power of the DA to charge an ISP with a crime (unless he actually has evidence the ISP is truly complicit in an illegality), but allow a search warrant to moniter all traffic if there is reasonable basis for assuming criminal activity passing through.
When property rights aren't involved, I think the standard of "in the public domain" (my term, cause I'm not a lawyer) is all that's required. For instance, if some damn fool is in his living room printing counterfeit money and the cops take a picture through his window of him doing it, I don't think a warrant should have been required. (Currently, I think the courts recently ruled otherwise for a guy growing pot in his living room.) Or if some idiot terrorist is using his own wireless network at home, I think whatever is out on the airwaves should be free for anyone else to decode. The burden is on the guy to do his own encryption. (Unfortunately, this, too has been attacked by the courts or by Congress -- for instance, it's now a federal crime to log in to a neighbor's wireless network, or to decode his transmissions, even if they are coming into your own home.)
The law is just a total hodge-podge of inconsistency. But to answer your question of "who watches the watcher", I think it comes down to the original system of the courts -- they grant the search warrants and suit may be filed by defendents, etc. I don't know how else it could be done. But it damn sure shouldn't be left to the arbitrary discretion of the cops.
Some of this ties into your other comment of how the Constitution could have been written to prevent the relativists / statists from distorting original intent. While I think the Constitution could have been better written to prevent some of the corruption we've suffered (most famously, the corruptions allowed by the Commerce Clause), at some point, no amount of better phrasing or additional prohibitions against government abuse will make any difference if the culture at large doesn't hold the right philosophy. (Leonard made this point once, I think.) There's got to be the philosophic foundation for a culture to sustain itself.
For instance, if everyone in this country was a commie and they couldn't distort the Constitution to their liking, they would just make up a new constitution, and damn the one we have. Hell, that's almost what's happened already.
In that sense, I compare this period in the history of the United States to the post-Classical Hellenistic period of ancient Greece, when there was a total loss of the original ideals of Athens, and the culture spiraled into a decline that left it philosophically bankrupt, constantly engaged in internecine warfare devoid of overarching principles, bereft of any original, creative art (always a key symptom of cultural decline), and ultimately defeated by the Macedonians, and reduced to the second-rate status of "losers".
On the other hand, maybe the more common comparison to the decline and fall of Rome is also appropriate. For one, we face a return to the barbarisms of the Dark Ages if we allow the decline of this country and the ascendency of the Muslim world to continue. Look at France today (literally, today): it's rather like the sacking of the Visigoths. And like the Romans, the French have no clue how to defend their culture against the barbarians. (In some ways I prefer the Greek comparison cause the Greeks actually believed in something philosophical in their classical period; the Romans didn't to nearly the same extent. But the Visigoth comparison is surely apt.)
Sent: Sunday, November 06, 2005 1:01 PM
Subject: Re: New Law Fuels Technology-Government Clash
In principle, I see no inherent "civil liberties" issue regarding government surveillance, it is a valid form of the "cop on the beat". The idea that the "privacy" of an act automatically precludes a goverment from protecting its citizens is a prescription for all sorts of disasters, and an immoral dereliction of duty. Can't it just gather info without any further action on their part? A rational culture, which presumes a rational goverment, has no fear of protection by its fellow citizens who are officials.
I don't see how someone who is breaking the law (assuming it is designed to protect and not infringe, on Individual rights), in effect declaring himself an "out"law, can then turnaround and invoke law to protect him against prosecution. Is the proper role of goverment only to wait for "crimes" to happen, or can it stop it from total fruition by interceding in the process of commission?
Now the above raises the issue of "if you don't know of any criminal acts in process", how can you validly claim the necessity to monitor or survey a particular individual or group? When does a "hunch" become a "suspicion"? And what actions of an official gave him a reason to "hunch" in the first place? How does an official legitimately gather info, of any kind and in any way, during the "actionline" of a citizens life? What are the actions that portend a criminal act in the making? What is it that an official "reacts to"? When doesn't he "initiate" actions?
This is all such a big deal today because we are in -
1) a situation where special-interest groups are engaging in a legalised civil war that demands one-upmanship
2) a culture that has no respect for, even knowledge of, Individual rights and so everyone of these groups are scared of the others. They know the sky is the limit for their antagonists in power.
We are in a process of disintegration through internal balkanization thanks to a Constitution that isn't explicit enough in absolutely protecting Individual Rights against the onslaught of relativism. We are in a process of suicide thanks to a generation of politicians who couldn't defend their daughters much less their country, against the onslaught of killers who explicitly and publicly state their intentions. It all depends on "what is, is" and so they invoke phony rights with the idea of not offending those who wish to kill them, coupled with not invoking their fundamental and absolute right of self-preservation.
It has become so bad today that the issue is not one of "Who watches the Watcher?", but just, "What Watcher?".
----- Original Message -----
Sent: Sunday, November 06, 2005 10:36 AM
Subject: New Law Fuels Technology-Government Clash
Speak of the devil...
"Today, this tug of war is playing out over the Federal Communications Commission's demands that a phone-wiretapping law be extended to voice-over-Internet services and broadband networks."
This was also news to me:
"(The FBI eventually dropped Carnivore in favor of commercial software; frequent cooperation from Internet service providers often made the technology unnecessary anyway.)"
"Now the communications network is built to be wiretap-ready, so you don't need Carnivore anymore. It's just intrinsic to the system."
New Law Fuels Technology-Government Clash
By BRIAN BERGSTEIN, AP Technology Writer
Sat Nov 5,12:56 PM ET
BOSTON - A new method of communicating is creating intriguing services that beat old ways of sending information. But law enforcement makes a somber claim: These new networks will become a boon to criminals and terrorists unless the government can easily listen in. This was the story line in the mid-1990s when the Clinton administration sought to have electronic communications encrypted only by a National Security Agency-developed "Clipper Chip," for which the feds would have a key.
The Clipper Chip eventually went the way of clipper ships after industry balked and researchers showed its cryptographic approach was flawed anyway. But while the Clipper Chip died, the dilemma it illuminated remains.
With each new advance in communications, the government wants the same level of snooping power that authorities have exercised over phone conversations for a century. Technologists recoil, accusing the government of micromanaging - and potentially limiting - innovation.
Today, this tug of war is playing out over the Federal Communications Commission's demands that a phone-wiretapping law be extended to voice-over-Internet services and broadband networks.
Opponents are trying to block the ruling on various grounds: that it goes beyond the original scope of the law, that it will force network owners to make complicated changes at their own expense, or that it will have questionable value in improving security.
No matter who wins the battle over this law - the Communications Assistance for Law Enforcement Act, known as CALEA - this probably won't be the last time authorities raise hackles by seeking a bird's eye view over the freewheeling information flow created by new technology.
Authorities are justified in trying to reduce the ways that technology helps dangerous people operate in the shadows, said Daniel Solove, author of "The Digital Person." But a parallel concern is that technology can end up increasing the government's surveillance power rather than just maintaining it.
"We have to ask ourselves anew the larger question: What surveillance power should the government have?" said Solove, an assistant professor at George Washington University Law School. "And to what extent should the government be allowed to manage the development of technology to embody its surveillance capability?"
Wiretapping - so named because eavesdropping police placed metal clips on the analog wires that carried conversations - has a complex legal history.
A 1928 case, Olmstead v. United States, legitimized the practice, when the Supreme Court ruled it was acceptable for police to monitor the private calls of a suspected bootlegger.
Behind that 5-4 ruling, however, a seminal debate was raging. The dissenting opinion by Justice Louis Brandeis argued, among other things, that the government had no right to open someone's mail, so why should a phone - or other technologies that might emerge - carry different expectations about privacy?
In 1967, as the dawn of the digital age was fulfilling Brandeis' fears that other forms of technological eavesdropping would become possible, the Supreme Court reversed Olmstead. After that, authorities had to get a search warrant before setting wiretaps, even on public payphones.
That apparently hasn't been much of a hindrance.
State and federal authorities have had 30,975 wiretap requests authorized since 1968, with only 30 rejections, according to the Electronic Privacy Information Center. Some 1,710 wiretaps were authorized last year, the most ever, with zero denied.
Since 1980, authorities also have been able to set secret wiretaps with the approval of the Foreign Intelligence Surveillance Court, which privacy watchdogs say requires a lower standard of evidence than the general warrant process. For the first two decades FISA orders numbered less than 1,000 annually; 2003 and 2004 each saw more than 1,700. Only four FISA applications have been rejected, all in 2003.
But technology began to pose obstacles in the 1980s, as old-fashioned telephone networks were giving way to digital switching systems that could also transmit information. Suddenly some wiretaps had to become virtual, using "packet sniffing" programs that spy on the splintered packets of data that make up network traffic.
Congress passed CALEA in 1994, requiring telecom carriers to ensure that their networks left it relatively easy for law enforcement to set wiretaps. The law applied to landline and cell phone networks but essentially exempted the Internet.
Of course, at the time, federal officials were advocating use of the Clipper Chip to ensure that bad guys couldn't hide by encrypting their online traffic.
The FBI also was developing Carnivore, a program that agents could tailor to grab specific e-mails and other Internet communications defined in a court order. (The FBI eventually dropped Carnivore in favor of commercial software; frequent cooperation from Internet service providers often made the technology unnecessary anyway.)
And all the while the NSA was harvesting the fruits of a system called Echelon, intercepting millions of international telephone calls and feeding them into the agency's humungous maw for analysis.
Justifiably or not, each of these steps unsettled privacy activists. And it is that unease that colors the current fight over expanding CALEA's reach to new services such as Voice over Internet Protocol (VoIP) by 2007. The FCC says the move is critical because converting voice calls into data packets essentially replaces the old phone system. VoIP services are expected to attain some 4 million U.S. subscribers by the end of this year.
"CALEA in a sense is the culmination of where we've been," said Barry Steinhardt, director of the technology and liberty program at the American Civil Liberties Union. "Now the communications network is built to be wiretap-ready, so you don't need Carnivore anymore. It's just intrinsic to the system."
Clipper Chip objectors a decade ago contended that in addition to being an onerous demand, the technology could be foiled, rendering it pointless.
Similarly, critics of expanding CALEA to broadband networks say the cost of rewiring - estimated as high as $7 billion for universities alone - is excessive. Those against expanding it to VoIP say it leaves too many holes to be effective.
For example, Internet phone services such as Vonage that can route calls to regular phones will be expected to support CALEA. But "peer-to-peer" VoIP services and instant-messaging programs that carry voice conversations from one computer to another are exempt - at least for now.
"If you take the argument to its extreme, every kind of Internet application, including (file-transfer programs) and Web browsing, is capable of transmitting communications. So where does it end?" said Glenn Manishin, an attorney with Kelley Drye & Warren LLP who has handled telecom regulation cases for companies and consumer groups. "Do they now have to have a back door into every Web browser?"
Plus, overseas services aren't covered by the U.S. law. Nor can it touch any home-grown Internet voice programs that serious criminals could develop.
"For the past two years, law enforcement has been saying, `If we just had CALEA we'd catch all the terrorists,'" said John Morris, director of Internet standards, technology and policy at the Center for Democracy and Technology. "Well, if they're sophisticated enough to evade all of our intelligence capabilities, they'll be sophisticated enough not to use a CALEA-compliant phone service."
CALEA critics also say authorities haven't shown that existing monitoring methods are so weak as to justify costly new back doors for government.
Indeed, while they are not nearly as common as phone surveillance, computer wiretaps have been successful even without the extra assistance CALEA might provide. For example, a 2003 report by the Administrative Office of U.S. Courts explained how surveillance on a DSL high-speed Internet line in Minnesota intercepted 141,420 "computer messages" in three weeks, aiding a racketeering investigation.
If there's one thing widely agreed upon in this debate, it's that Congress could do well to step in.
Not only could lawmakers clarify how much of CALEA ought to apply to the Internet, but they might also reconsider the overarching Electronic Communications Privacy Act. That was passed in 1986, well before the Internet became the vast commercial and personal medium that redefined our categories of information.
"That pervades CALEA and everything we talk about," Solove said. "This is something that Congress has been very derelict in addressing."