A famous quote from Benjamin Franklin floats up every time a new government surveillance program comes to light or a new rule is proposed. The gist of it is that if you are willing to give up liberty for safety, you deserve neither of those things. Interestingly enough, the context in which he said it was quite different from the way we use it today. None the less, like many of the words our founding fathers wrote, the phrase changed with the times, and it still holds water today.
At midnight tonight, a controversial change to computer surveillance goes into effect. The change to rule 41 will give the government the ability to infect a suspect’s computer with trackers and use those trackers to spy on all the computers that interact with it, no matter what jurisdiction they are in. Something similar was already done when the FBI used a similar tactic in Operation Playpen, which led to hundreds of arrests in a child pornography ring.
There are many implications to the hacking allowed by Rule 41. Authorities will be free to shop for jurisdictions where warrants are granted more freely. The rule allows for surveillance of this type to cross any boundary, even international ones. Infecting other computers with spyware indiscriminately will, opponents say, infringe on fourth amendment rights.
Senate bill S.3475 moved to delay the onset of Rule 41 until more research could be done to assess the implications of such broad surveillance, but Rule 41 will take effect tonight at midnight as the bill failed to gain traction in time.
At first glance, the case against Rule 41 might not be apparent, especially when considering the results of Operation Playpen. The argument, authorities say, is that the rule will allow them to move quickly and capture criminal networks that are growing in cyberspace at an alarming rate.
Some say that the changes in Rule 41 are not sweeping changes to the abilities of law enforcement, but rather changes to the venue of warrants. As law enforcement changes to fight crime in cyberspace, rules that require a separate warrant for the physical location of every computer and drive in an online criminal network will create an undue strain on law enforcement efforts.
Opponents say that this power will allow too wide a net to be cast. The language in the amendment allows for hidden surveillance of any damaged computer used in interstate or international commerce or communication, computers that have measures in place to hide their location, or systems that cover five or more districts. Virtually any computer that is hooked up to the internet will engage in interstate or international communication or commerce and cover five or more districts in any daily internet usage.
Some say that the power granted to authorities represents a drastic overreach and a danger to civil liberties. In a time where the power structure in the country recently changed course drastically, it isn’t hard to imagine, they say, someone who would use that power irresponsibly after gaining control of the government. The things that sometimes protect criminals from the police are the very things that will protect innocent people if the wrong people come to power. It isn’t about whether or not you have something to hide. It’s about whether or not freedom can survive in the long run with dangerous surveillance capabilities in the system.
When taken in context with other encroachments on civil liberties like the ability to execute U.S. citizens without trial, detain citizens indefinitely, and monitor communications on a massive scale, a picture comes into focus that is disturbing to many. Some contend that the recent shocking election result makes it clear that someday someone you don’t trust with their finger on the trigger can rise to power.
While facing the need to fight online criminal syndicates, measures must be taken to prevent the erosion of the civil rights that protect us all. High tech problems call for high-tech solutions. Perhaps a Stuxnet-like solution is in order where surveillance tools would only become active if an initial scan of a system shows a certain set of files, programs, or configurations that would implicate that system being involved in a specific criminal activity.
Even solutions like a self-destructive, selective, and precise tracker present potential legal creep. When searching for the balance between individual freedoms that protect us from tyranny and safety, we must always err on the side of caution. Our civil liberties are our greatest protections.