If we don’t pay attention, in the next few years we’ll see business handcuffed by invasive and repressive laws simply because no one thought them through. Of course, one thing we’ll be sure of: The FBI will be able to tell us what we were reading while we weren’t paying attention.
“Although the Santa Cruz Library makes every effort to protect your privacy, under the federal USA PATRIOT ACT (Public Law 107-56), records of the books and other materials you borrow from this library may be obtained by federal agents. . . . Questions about policy should be directed to Attorney General John Ashcroft, Department of Justice, Washington D.C. 20530.” – Sign in a Santa Cruz public library.
Yes, it is true. Hidden inside H.R. 3162, the USA Patriot Act, there is a section titled “Access to records and other items under the foreign intelligence surveillance act.” This section gives the FBI carte blanche to find out what you read and watch. Honest.
What is required is an agent asserts your media selection details are “relevant” to an investigation and a warrant will be issued by a secret judge.
And you don’t have to be suspected of anything for the FBI to ask for your records. At one time “probable cause” had to be demonstrated, tying the need for data directly to a crime or evidence of a crime but, alas, no more. And the librarian, bookshop or video shop owner is prohibited from telling you that you are being investigated!
Getting worried? Then this is going to really tick you off: Under the wording of the latest draft of the Patriot II Act, using encryption in the commission of a crime attracts additional penalties much as using a gun in a robbery does.
Say you failed to pay state tax on an Internet purchase (you did know you are responsible for reporting such purchases, right?). Because you probably made the purchase using a Secure Sockets Layer encrypted link, you could face five extra years for the offense, according to an Associated Press report.
That is unlikely to happen, as the AP story points out. But there could be a risk for corporations if a zealous prosecutor was determined to “get” them.
Worse still, a number of states, including Massachusetts, Texas, Alaska and Colorado, have draft bills that propose to extend the dreaded Digital Millennium Copyright Act such that the use of routers, firewalls and VPNs would be illegal! No kidding (see what Scott Bradner has to say about this).
The Colorado bill (HB 03-1303) is a typical example of the wording of these bills: “A person commits a violation . . . if he or she possesses, uses, manufactures, develops, assembles, distributes, transfers, imports into this state, licenses, leases, sells, offers to sell, promotes or advertises for sale, use or distribution any communication device . . . to conceal or to assist another to conceal from any communication service provider . . . the existence or place of origin or destination of any communication that utilizes a communication device.”
Again, common sense tells you that this is unlikely to be interpreted so broadly as to make routers, VPNs and firewalls illegal, but it is not actually certain. And the use of any encryption or network address translation or anonymizing service of any kind will make it easy for the government to request a warrant to see what’s going on “just in case.”
All this legislation and its weird implications demonstrate The Law of Unintended Consequences. The Concise Encyclopedia of Economics defines this law as: “[the] actions of people – and especially of government – always have effects that are unanticipated or ‘unintended.’ Economists and other social scientists have heeded its power for centuries; for just as long, politicians and popular opinion have largely ignored it.”
And nowhere do unintended consequences cause more problems than in IT. This legislation needs to be watched carefully. If we don’t pay attention, in the next few years we’ll see business handcuffed by invasive and repressive laws simply because no one thought them through.
Of course, one thing we’ll be sure of: The FBI will be able to tell us what we were reading while we weren’t paying attention.
Book lists to backspin@gibbs.com.
