[FYI] (Fwd) FC: Jonathan Zittrain on data retention, an "awful idea"

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Thu, 27 Jun 2002 15:13:53 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Jonathan Zittrain on data retention, an "awful idea"
Send reply to:  	declan@well.com


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Date: Thu, 27 Jun 2002 13:55:15 -0400
To: declan@well.com
From: Jon Zittrain <zittrain@cyber.law.harvard.edu>
Subject: Re: FC: "Data retention" scheme marches forward in European
   Parliament
In-Reply-To: <5.1.1.6.0.20020627113547.01bbbd28@mail.well.com>

I've written something opposing this at 
<http://www.forbes.com/forbes/2002/0708/062.html>.

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Forbes

On My Mind
Beware the Cyber Cops
Jonathan Zittrain, 07.08.02

Even with safeguards, allowing the government to store Internet
traffic is an awful idea. Our desire to form a cocoon against
terrorists is understandable. But what little policy we've seen from
the Justice Department seems to deal with terrorism as a medieval king
would take on would-be assassins: ever-tighter boundaries around our
national castle and increased surveillance and suspicion within. We
should resist the notion that such heightened scrutiny, especially if
inconspicuous to the public, carries no significant cost to
law-abiding citizens.

Consider the range of proposals for unobtrusive but sweeping Internet
monitoring. Most of them are doable as a technical matter, and all of
them would be unnoticeable to us as we surf. Forbes columnist Peter
Huber's idea is perhaps the most distilled version. Call it the return
of the lock box. He asks for massive government data vaults, routinely
receiving copies of all Internet traffic--e-mails, Web pages, chats,
mouse clicks, shopping, pirated music--for later retrieval should the
government decide it needs more information to solve a heinous crime.
(See the Nov. 12 column at forbes.com/huber.)

The idea might sound innocuous because the data collected would remain
unseen by prying eyes until a later search, commenced only after legal
process, is thought to require it. Make no mistake, however: The
idealized digital lock box and many sibling proposals are
fundamentally terrible ideas. Why?

First, because supply creates demand. As soon as comprehensive
databases of the public's communications or activities exist, the
pressures to use them for purposes beyond those for which they were
chartered will be inexorable. We might, for instance, create a
database of all available e-mail traffic that would be searched for
conspirators in a major terrorist act. But such a lode will surely be
sought by defense attorneys--which means private parties coming to
learn what's inside.

Law enforcement will want to try to track down murderers, deadbeat
dads or even those who use file-swapping services to trade copyrighted
music. (Yes, illicitly swapping enough copyrighted files is a crime.)
What was intended as an emergency tool for limited cases will, by its
own breadth of coverage and success at limited purposes, become
commonplace for any behavior deemed harmful.

This is all the more worrisome considering the potential for misuse by
those with access to gathered data. Our investigative authorities may
be quite happy to ignore warrant requirements to develop
intelligence--even if it means an inability to use the resulting
evidence in court. And a system so convenient to use, evincing no
visible intrusion upon those surveilled, serves as an irresistible
invitation for purposes beyond those authorized.

To make snooping routine, rather than a reaction to a reasonable
suspicion of particular wrongdoers, is the sine qua non of a police
state. It means spying on people otherwise presumed innocent, since it
means spying on everyone. It is precisely the shackles the populations
of the East cast aside with the fall of the Soviet Union. For good
reason did the framers of our Bill of Rights circumscribe what can be
collected by authorities in the first place, rather than merely limit
the uses of that data.

Most important, ubiquitous snooping calls into question our American
identity. Suppose we could design a car that would report speeding the
moment a driver exceeded the limit by more than 10mph, or that
detected a driver's intoxication. A ticket could be automatically sent
by mail, or a police officer summoned to the scene. Most Americans
would cringe at such ideas despite their appeal. Freedom includes the
choice to be a law-abiding citizen in lots of ways, realizing that
only the most persistent or terrible misdeeds are eventually called to
account. When we don't cheat on our taxes or steal from our
workplaces, it's because we choose to be good--not because we're under
constant threat of being caught and punished.

We must not allow our legitimate fright after last September's events
to lead us into a sense that civil liberties are dispensable luxuries.
Lock boxes should be saved for our material possessions, not the
expressions of our thoughts and ideals.

Jonathan Zittrain, Harvard law professor; codirector, Berkman Center
for Internet & Society.




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