It has long been the case that technology outpaces the law. When the founders ratified the 4th Amendment in 1791 to protect against unreasonable government searches and seizures, they could not have imagined the use of land line telephones let alone encrypted video teleconferencing. Despite all the changes in technology over the last century, U.S. law has usually caught up ensuring that government's ability to protect the public through electronic surveillance of criminals and other threats has been consistent with the principles articulated in the 4th Amendment and with private property rights generally.
In 2010, technology has once again leaped passed the law, and it has done so in an age of global terrorism and international criminal organizations. Terrorists and criminals now regularly use the internet, including social networking sites, such as Facebook, peer-to-peer messaging, e.g., Skype, and wireless hand-held devices, such as a Blackberry to communicate via encrypted technology making it harder for law enforcement and intelligence agencies to monitor their conversations. As with the advent of the land line telephone, we can and must find the right balance today between public safety, free enterprise and freedom of communication and speech.
According to the New York Times, in order to close legal and technical gaps in electronic surveillance, the Obama Administration will propose a series of changes in 2011 to communications law. These include requiring communications services that encrypt messages to provide a way to unscramble them; foreign-based providers doing business inside the U.S. would have to install a domestic office capable of performing intercepts; and developers of software that enable peer-to-peer communication would have to redesign their service to allow for interception. The government's ability to access the information would still be subject to court approval. In fact, the proposal is not so much an expansion of government authority, but rather, application of established government authority in a new medium.
While the need for the law to sync up with technology is very real, there are still questions and potential unintended consequences that must be addressed prior to the Administration's proposal coming to pass. For example, the costs associated with changing the technical design of some of these systems could be very large and would likely be passed onto consumers, assuming companies could even absorb the costs in the first place. Does the risk of terrorists evading current government surveillance techniques warrant such a large disruption to the technology or are there other reasonable alternatives? The United Arab Emirates (UAE) recently concluded no such alternatives exist and threatened to block all of BlackBerry's e-mail and text messaging services in the UAE unless Research In Motion, (RIM), the Canadian maker of Blackberry, created technical "backdoors" to allow law enforcement to eavesdrop on the company's users. Talks between the UAE and RIM are ongoing.
There is also the risk that criminal hackers, rogue governments and even terrorists could exploit the technological backdoors established for law enforcement. This creates not a privacy versus security concern as much as a security versus security clash. The purpose of encrypted files and communications is to ensure unauthorized personnel don't have access to the information and the very notion of a "backdoor" could result in little more than a self imposed vulnerability exploited by the very people the backdoor is designed to help stop. In an age where cyber crime and terrorism are actually growing, it would be a sad irony if the U.S. actually weakened cyber security in an attempt to strengthen homeland security.
We have seen challenges involving the law and technology before, and we have overcome them while maintaining innovation and privacy. In 1994, Congress passed, and President Clinton signed, the Communications Assistance to Law Enforcement Act. The act was designed to bring the law in-line with advancements in technology by giving law enforcement the same wire-tapping authority over digital networks and cell phones as had been the case for traditional land line telephones. Despite dire warnings from some groups, cell phone innovation did not stop and privacy was not eviscerated. In fact, communications technology has progressed so far and fast that we are once again at a place where it has outpaced the law to the point of potentially undermining homeland security.
The innovation and progress generated under the internet has been monumental and any changes to it today must be done with great care and understanding. At the same time, we cannot allow the internet to become a "free plotting zone" where terrorists and criminals can hatch plots with the safety of knowing that law enforcement agencies either lack the ability to intercept their communications or cannot read the intercepted communications because of encryption or can't decipher the information in a timely manner to stop the next attack.