President Requests New Electronic Surveillance Tools

NOTE: I'm writing for the Georgia State University Signal once again. This and the next few posts are articles published by the paper.

A few weeks ago, the media spent about ten minutes discussing a new proposal by the Obama administration which would require telecommunications carriers to install special government-only “backdoors” permitting the decryption of many different kinds of electronic communications. The story faded fast, but I nonetheless find myself continuing to ponder this news.

On the one hand, my immediate response as a libertarian is one of horror. It scares the bejeezus out of me that the government is even asking for this kind of access to citizens’ chat conversations, text messages, and other electronic communications. I’ve been extremely wary of electronic surveillance since back in 2002 when AT&T, Verizon, BellSouth, and several other telecoms quietly acceded to the National Security Administration’s now-famous (and illegal) warrantless wiretapping program.

On the other hand, there are several safeguards in this proposal that distinguish it from the NSA program. For starters, this is an ordinary law enforcement program, not a national security program. This means the process is unlikely to be kept tightly secret, as the NSA program was until the New York Times broke the story. Less secrecy means more oversight, which in turn means that the new surveillance tools are less likely to be abused.

Further, the proposed legislation requires that law enforcement agencies obtain warrants before they begin monitoring a person’s communications, which is a major difference between the two programs. This means that a judge must find probable cause and sign off on any proposed surveillance before law enforcement agents can actually use the backdoor system. Theoretically at least, this puts the law on the same footing as most other surveillance laws.

In the abstract, I have no objection to a law that makes it easier for the government to track down murderers, drug dealers, and white collar criminals. The government of course needs the tools to enforce the law. If the police have a judge’s authorization, it doesn’t make sense for them to hack through private encryption to track suspects’ communications. On the face of it, the backdoor provision makes perfect sense.

But long experience has taught us that government employees are no less susceptible to temptation than the rest of us, and the sheer scope of the proposed power is worrying. Once a law enforcement officer obtains the means to decrypt electronic communications, what assurances are there that she will not misuse that tool in the future? What is to prevent her from snooping a bit more than required once she has access to the system? The current proposal seems to contain little in the way of safeguards to prevent this sort of abuse.

The first thing that came to my mind when I read this story is the recent firing of a Google engineer, David Barksdale, who used his special access privileges to monitor the accounts of several (incidentally underage) private citizens, including Gmail, Google Voice, and Google Chat accounts. Barksdale had rather high level access to Google’s systems because he needed it to do his job, but instead he decided to pursue personal goals with those tools. Indeed, it wasn’t until Barksdale revealed to his victims that he had been monitoring them that he was caught. His victims’ parents contacted Google, and Google quietly fired him. In the case of an overreaching law enforcement officer, justice is not likely to come so easily.

Though the idea sounds good in principle, this plan strikes me as an invitation to abuse unless it is revised to include much more comprehensive safeguards.

Edit 11/4/2010: The version of this story published by the Signal has some minor wording differences. Unsurprisingly, I like my version better, but in the interest of posterity, here's a link to the "official" version.