Federal Government to Seek Web Message Surveillance Power

By Wayne Rash  |  Posted 2010-09-27 Print this article Print

title=Casting a Huge Net to Catch the Dumbest Criminals} You can assume that the respective governments of those companies would complain loudly indeed if the United States were to try to force their companies to comply with a U.S. law that unilaterally tries to change privacy rules. This is especially true in the EU, where specific privacy rules are mandatory, and they're far from in concert with U.S. law enforcement demands. Is the United States ready to start a trade war with Europe or Canada just to prove a point? 

The problem goes on from there. Just because communications providers can make it possible to tap into their e-mail systems doesn't mean that users have to cooperate. One of the reasons for the continuing success of PGP is that it provides a means of encrypting e-mail so that the government (or anyone else) can't read it, even if they can get it from your e-mail provider. I think it's a pretty safe bet that degrading encryption so that the government can tap messages will simply mean that there will be encryption apps that work with smartphone messaging systems just as they do now with e-mail. 

So won't the government just ask for a new law outlawing unbreakable encryption for all electronic communications? The government might ask for that, but then it raises a whole new set of issues, some of them Constitutional. People in the U.S. have the right to express themselves in any way they wish. You can't, for example, require that communications be in a particular language or that you can't use Pig Latin or that you can't use, for example, French, even though they may be equivalent to encryption for some people. 

In other words, choosing to express yourself in encrypted text is a protected form of expression. It's possible that the courts might decide differently, but it would take years, and there's little likelihood that the government would succeed considering the amount of opposition a threat to the First Amendment is likely to get. 

While the government is likely to eventually get its wish, probably long after Barack Obama leaves office, after treaties are negotiated and after a few changes in the make-up of Congress (in both directions), all that it will really mean is that law enforcement can listen in on criminals who are too dumb to find another way to encrypt their communications. It would seem that there are better ways for the government to catch the bad guys if only they focus on being more creative and work less on trampling on everyone's rights just to catch a few of the dumbest criminals. 

Wayne Rash Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazineÔÇÖs Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.

He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.

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