--- Date: Thu, 27 Jun 2002 13:55:15 -0400 To: declanat_private From: Jon Zittrain <zittrainat_private> Subject: Re: FC: "Data retention" scheme marches forward in European Parliament In-Reply-To: <5.1.1.6.0.20020627113547.01bbbd28at_private> I've written something opposing this at <http://www.forbes.com/forbes/2002/0708/062.html>. --- Forbes On My Mind Beware the Cyber Cops Jonathan Zittrain, 07.08.02 Even with safeguards, allowing the government to store Internet traffic is an awful idea. Our desire to form a cocoon against terrorists is understandable. But what little policy we've seen from the Justice Department seems to deal with terrorism as a medieval king would take on would-be assassins: ever-tighter boundaries around our national castle and increased surveillance and suspicion within. We should resist the notion that such heightened scrutiny, especially if inconspicuous to the public, carries no significant cost to law-abiding citizens. Consider the range of proposals for unobtrusive but sweeping Internet monitoring. Most of them are doable as a technical matter, and all of them would be unnoticeable to us as we surf. Forbes columnist Peter Huber's idea is perhaps the most distilled version. Call it the return of the lock box. He asks for massive government data vaults, routinely receiving copies of all Internet traffic--e-mails, Web pages, chats, mouse clicks, shopping, pirated music--for later retrieval should the government decide it needs more information to solve a heinous crime. (See the Nov. 12 column at forbes.com/huber.) The idea might sound innocuous because the data collected would remain unseen by prying eyes until a later search, commenced only after legal process, is thought to require it. Make no mistake, however: The idealized digital lock box and many sibling proposals are fundamentally terrible ideas. Why? First, because supply creates demand. As soon as comprehensive databases of the public's communications or activities exist, the pressures to use them for purposes beyond those for which they were chartered will be inexorable. We might, for instance, create a database of all available e-mail traffic that would be searched for conspirators in a major terrorist act. But such a lode will surely be sought by defense attorneys--which means private parties coming to learn what's inside. Law enforcement will want to try to track down murderers, deadbeat dads or even those who use file-swapping services to trade copyrighted music. (Yes, illicitly swapping enough copyrighted files is a crime.) What was intended as an emergency tool for limited cases will, by its own breadth of coverage and success at limited purposes, become commonplace for any behavior deemed harmful. This is all the more worrisome considering the potential for misuse by those with access to gathered data. Our investigative authorities may be quite happy to ignore warrant requirements to develop intelligence--even if it means an inability to use the resulting evidence in court. And a system so convenient to use, evincing no visible intrusion upon those surveilled, serves as an irresistible invitation for purposes beyond those authorized. To make snooping routine, rather than a reaction to a reasonable suspicion of particular wrongdoers, is the sine qua non of a police state. It means spying on people otherwise presumed innocent, since it means spying on everyone. It is precisely the shackles the populations of the East cast aside with the fall of the Soviet Union. For good reason did the framers of our Bill of Rights circumscribe what can be collected by authorities in the first place, rather than merely limit the uses of that data. Most important, ubiquitous snooping calls into question our American identity. Suppose we could design a car that would report speeding the moment a driver exceeded the limit by more than 10mph, or that detected a driver's intoxication. A ticket could be automatically sent by mail, or a police officer summoned to the scene. Most Americans would cringe at such ideas despite their appeal. Freedom includes the choice to be a law-abiding citizen in lots of ways, realizing that only the most persistent or terrible misdeeds are eventually called to account. When we don't cheat on our taxes or steal from our workplaces, it's because we choose to be good--not because we're under constant threat of being caught and punished. We must not allow our legitimate fright after last September's events to lead us into a sense that civil liberties are dispensable luxuries. Lock boxes should be saved for our material possessions, not the expressions of our thoughts and ideals. Jonathan Zittrain, Harvard law professor; codirector, Berkman Center for Internet & Society. ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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