I don't think I adequately expressed how fundamentally radical it is that the administration is planning to propose legislation that would force Internet communications companies to build their systems in a way that allows the government to have a backdoor. Part of the problem, I think, is that we still think of privacy on the Internet as being somehow different from physical privacy. As in, I still have privacy if there isn't a camera in my home, but the government can read my e-mails. It should be immediately obvious, though, even in that example, how tapping the Internet is not like tapping a phone line.
“Telephone conversations are ephemeral, they go away after you're done," explains Christopher Calabrese, legislative counsel with the ACLU. "Internet communications leave a record; that record, while it seems just as private as the actual conversation, is protected at a much lower level.” What that means is that unlike a phone tap, which tracks future communications from the point at which the eavesdropping begins, under this proposal, past records would be accessible too.
Last night I was thinking about an aside in a piece Julian Sanchez wrote about how we increasingly live our lives, and it's true. For a growing number of people, if the government has access to someone's Internet communications, you have access to just about everything. They know what food you like. They know who you're having sex with. You know who your friends are, and who your enemies are. They know your political views, your literary preferences, your sense of humor. They know how much money you make, what kinds of health problems you have, what neighborhood you live in.
Viewed in this context, forcing Internet communications companies to reverse engineer their systems for breach by the government is like forcing construction companies to build houses that have cameras in every room. (I spoke to Sanchez about the whole house metaphor earlier today, and he pointed me to this post he wrote in February making a similar point: "Architecture is everything.")
Now each camera is owned by a different company, depending on what room it's in. Facebook owns the camera in your living room, Foodler owns the one in your kitchen, Amazon owns the one near your bookshelf. The government isn't watching you all the time, even though some of the cameras are recording -- although how much depends on the individual company. But if they want, thanks to the fact that you have cameras built into every room in your house, the government just has to ask the company for whatever they've recorded, and they can go back and find out everything they want to know, because unlike a phone call, Internet communications are archived. From the point the tap is authorized, they can turn the "cameras" on and watch whatever you're doing.
Calabrese suggested, however, that if the law is passed, communications companies do what firms often do when forced to comply with onerous regulations: Leave.
“I think that is relatively unlikely that they're going to force all companies to do this, period,” says Calabrese, “but as a practical matter many of these communications companies would immediately move offshore, so there would still be plenty of communications avenues the government couldn't touch.”
