IP: Re: EU condemned over planned snoop laws

[David Farber <dave () farber net>]

> Date: Thu, 17 May 2001 10:50:15 -0400
> To: farber () cis upenn edu, ip-sub-1 () majordomo pobox com
> From: "David P. Reed" <dpreed () reed com>
> Subject: Re: IP: EU condemned over planned snoop laws
>
> Some musings in regard to EU comms logging proposals, perhaps for IP:
>
> In thinking about Justice Scalia's purported question the other day 
> regarding citizen's "expectation of privacy", I've been wondering along 
> the following lines.
>
> Scalia was reported to ask whether the foundational right of "expectation 
> of privacy" had to be viewed as contingent on technological change - that 
> is, as I understand it, whether new sensing technology (like innovations 
> creating the ability to image through walls) should be taken into account 
> when citizens assess what privacy they should "expect" in their homes and 
> lifestyles.
>
> One senses the idea of "pragmatic realism" is being raised towards a legal 
> or constitutional standard - the legal equivalent of Scott McNealy's 
> purported comment: "Privacy? Get over it!"
>
> If that is true, shouldn't my "expectation of privacy" also rise with the 
> ability to protect my own personal speech from being overheard?  That is, 
> if I can encrypt data, and route it through highly secure steganographic 
> channels, I should have a higher expectation of privacy as this technology 
> improves?
>
> The lever should not be a one-way ratchet against the citizen.  It should 
> work both ways, unless we somehow agree that governments are somehow 
> privileged in an absolute sense (as Kings used to be, and perhaps 
> technocrats would wish to be).  So if the argument hinted at by Scalia 
> were to hold, it should be an affirmative reason why the EU should just 
> get comfortable with this expectation of a higher level of privacy that 
> can be achieved (rather than trying to roll back to an earlier day).
>
> In any case, it is probably a pyhrric success if ISPs are forced to record 
> email and voice conversations for law enforcement.  It is getting 
> extremely inexpensive to build systems that provide full messaging service 
> in ways that are easily hidden and decentralized enough to escape that 
> regime of regulation.  My ISP, for example, does not provide my email 
> service - my hosting service does.  And I can easily diffuse my email 
> service into the "underground" while still getting full 
> functionality.  Pushing on this issue will only hasten these underground 
> services' development and general deployment, I would think - leaving the 
> cat out of the bag, creating a situation where legitimate societal 
> benefits, of joint protection against bad guys, are more expensive to 
> accomplish.  And further, injuring the reputation of law enforcement 
> permanently.  I don't think any post office (US or EU) is xeroxing my mail 
> and saving it for seven years...  what's the clear and present danger?



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