Hi-Tech Rat Race: Law Enforcement Surveillance and New Technology
posted by Daniel Solove
Brian Bergstein writes in an AP article about the issue of law enforcement surveillance and technology:
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.
A short while ago, I blogged about how the FCC was attempting to make universities and libraries pay for building surveillance capabilities into their new technologies.
In Bergstein’s article I commented:
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?”
The CALEA involves questions of how surveillance capabilities ought to be incorporated into new technologies. But there’s another issue that is deeply intertwined — the extent of law enforcement’s surveillance power. That issue is addressed (in significant part) by the Electronic Communications Privacy Act, a law passed back in 1986. It is quite outdated in my opinion. As Bergstein concludes his article:
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.”
1. Solove, How Private Is Our Email? Councilman’s Unfinished Business (from PrawfsBlawg)
2. Solove, The USA Patriot Act: A Fraction of the Problem (from Concurring Opinions)