In response to requests from federal law enforcement and national security officials, members of Congress are drafting a bill to grant enhanced wiretapping capabilities enabling them to intercept communications of encrypted e-mail transmitters such as BlackBerry, social networking Web sites such as Facebook, and software that allows direct “peer to peer” messaging like Skype.
Even though nothing has been formally introducd in Congress, privacy advocates are already up in arms about the proposed e-wiretap bill which would provide the U.S. government with a back door into all communications systems.
“People have expectations of privacy in their electronic communications, outside of telephone, that are different than for other forms of communication,” said Jeffrey C. Johnson, partner of the New York law firm Pryor Cashman, LLP. “Every day litigators run though e-mails in which people say things that they would never put into a memo or a letter. People think of it as a transitory thing, like having a chat with someone in the office. Moments after it’s over, it’s in the ether.”
Danger of Expansion
The issue has been under discussion for a few years as more communications move away from traditional telephones to computer-based devices, prompting law enforcement officials to seek ways to access these exchanges as they do through more traditional wiretaps, Johnson added.
However, Johnson notes, the communal nature of the Internet—with chat rooms, social networks, etc.—would make it very easy for an “authorized” wiretap to monitor certain communications to get out of hand, with law enforcement officials “listening in” on other communications that should remain protected.
Therefore, Johnson says, there should be a vigorous public debate over just how broad additional powers, if any, should be.
“We saw many of the same issues in the debates over the Patriot Act,” says John Mahoney, partner and head of labor and employment law practice at Tulley Rinckey, LLC in Washington, D.C. “This raises a lot of concerns. They would have to severely limit the scope of any warrant. Even though warrants would be required, once the order is granted, it could easily be abused to go beyond the scope of the original order and into other social media.”
Revamp of Internet Required
“This is a typical proposal coming from politicians and bureaucrats,” says Eric Garris, director of antiwar.com. “Terrorists and criminals can just avoid it. The Internet is a decentralized system.”
That means any such proposal, along with being a threat to personal privacy, would also be costly and difficult to impossible to implement, Garris and Mahoney both say.
“This proposal is like the one for the so-called ‘Internet kill switch,'” Garris said. “They would have to be able to control input and output across borders, and they can’t.”
Within the United States, in order for the proposal under discussion to work, it would call for a major revamp of certain portions of the Internet to enable the eavesdropping technology to work, Garris said. Not only would that cost untold amounts of money, it would also leave other holes that terrorists and other criminals could easily exploit, Mahoney said.
Web Wiretaps Already Happening
Babak Pasdar, president and CEO of Bat Blue, a Clifton, New Jersey cloud services consulting, architecture, and design firm, calls the proposal a further erosion of Fourth Amendment rights. He say Internet and cellular wiretaps of this sort are already being conducted.
Pasdar advised Congress as an expert witness to the Senate Judiciary Committee and the House Subcommittee on Energy and Commerce on warrant-less wiretapping by the government.
“One of the biggest challenges is the constitutionality of such things,” Pasdar said. “This is already being done at a wireless carrier, and I blew the whistle on it. I thought it was the right thing to do as an American.
“There’s a whole slew of dynamics at play here,” he added. “It’s very easy for the government to overstep its bounds with this. They would authorize this at one layer and not others, but law enforcement would not be able to keep [the authority to eavesdrop] contained.”
Even with all the privacy and technical issues, the discussions are more than simply a trial balloon to gauge public reaction, Mahoney says. “I understand law enforcement’s desire to have expanded authority because traditional wiretap laws don’t extend to new media. But people need to have a reasonable expectation of privacy. There is a lot of danger of potential abuse.”
Phil Britt ([email protected]) writes from South Holland, Illinois.