This story appeared on Network World at

http://www.networkworld.com/columnists/2005/082205bradner.html

'Net Insider

Online privacy: The fool's gold ring of safety

By Scott Bradner, Network World, 08/22/05

Almost exactly a year after I wrote about the very strained logic used by two judges of the U.S. Court of Appeals for the First Circuit to remove all wiretapping protection from the Internet, the full court has found some common sense and overruled its brethren. It looks like Bradford Councilman is going to trial, and that is a good thing for you and me.

My earlier column (Maybe you shouldn't digitize your communications) reviewed the case, but basically Councilman ran a small e-mail service for book dealers and apparently decided that reading some of his customer's e-mail would give him a business advantage. After being discovered and arrested, his lawyers said that whatever he did was not illegal wiretapping, because the e-mail was not in motion on a wire when it was copied, which his lawyers argued was needed to violate the Federal Wiretap Act. A number of judges, including two of three in a panel from the First Circuit Court of Appeals, agreed, but the U.S. government appealed the last decision to the full court. That court has now ruled and, except for the two judges that made the earlier decision and are sticking to their strange guns, unanimously said that there was no way that the minority's assumption of congressional intent could be supported by history. The court sent the case back to district court for trial.

This is an important decision. The earlier one eviscerated wiretap and eavesdropping protection on data networks. Now we are back to the previous state of things. As I wrote last week, that state is a confused one when it comes to the authority of the government to wiretap the Internet. But at least, with this decision, the 'Net is no longer open for everyone to legally wiretap.

Now that this silliness seems to be over, is it possible to bring logic into the wiretapping of the Internet discussion? I'm not sure. As I wrote last week, the FCC has ruled that certain Internet service providers and certain VoIP service providers must be ready to wiretap customers if requested by law enforcement. It's not hard to predict that law enforcement will want the restrictions to "certain" providers removed and they will mutter darkly about national security to try to get that done, nor is it hard to predict that they will succeed. But it's hard to see how easy access to wiretapping would do that much to actually help national security.

Technology that supports direct, encrypted, computer-to-computer communication that looks just like normal "safe" traffic is easy to build. If the real bad guys (national security- or crime-wise) are using the right technology, no ISP or VoIP wiretapping will give law enforcement much real visibility into what they are doing. Easy access to wiretapping would make it easier for the FBI if they fell back to their old, J. Edgar Hoover methods of spying on U.S. citizens who disagreed with something the government was doing and to maybe make it easier to catch dumb, petty criminals but it is no magic bullet to defeat terrorists, drug lords or pedophiles.

The coming national discussion on this will be a hard one because it will be difficult to watch Congress toss out our basic freedoms to reach for the fool's gold ring of safety.

Disclaimer: Harvard's students are in the business of reaching for (one hopes, real) gold rings, but the university has expressed no opinion on the above subjects.