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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