Jan 252008

The Electronic Frontier Foundation (and others) are spearheading a campaign to protest bills in Congress that would give retroactive immunity to the telephone companies who helped the government eavesdrop on ordinary people’s conversations. We’re not speaking about tapping those phone lines of people who were under investigation, because in those instances the government could have gotten warrants to tap them. We’re talking about ordinary, innocent Americans for whom no warrants could be gotten — and none were. Despite Fourth Amendment principles protecting people’s privacy, and a Wiretap Act that protects the privacy of phone calls specifically, the government went ahead and invaded that privacy by enlisting the phone companies to install bugging equipment within its central switching apparatus. Instead of just tapping the one line of someone under suspicion, the government tapped everyone’s lines, whether they warranted suspicion or not.

Lawsuits are pending against these phone companies for their illicit tapping — the Wiretap Act is clear about when phone companies may intercept phone conversations, and it clearly doesn’t apply to what they did — so under pressure from the Bush Administration, who had asked for the spying, Congress is considering passing a bill that would retroactively exonerate the phone companies for their illegal interceptions. Thus the campaign, to express outrage at such a prospect. The campaign is designed to put a human face on the situation, to remind Congress that the people spied upon were not some abstraction but real people, who up to now were entitled to their privacy. And so it has solicited pictures from those who were spied upon people (in other words, everyone), which have been posted to a flickr stream. (See if you can find mine.)

This situation is a story itself, but I wanted to juxtapose it against another, similar story. Recently I wrote about plans by some major ISPs to start sniffing all the network traffic they carried for copyright violations. Even if the project of policing for copyright violations were actually possible for an ISP to do (which it’s not, for how are they to know whether something is copyrighted, or whether the person sending it is not actually entitled to do so, etc.) it represents the similarly nightmarish scenario that the people who provide a communications network will commit the wholesale interception and monitoring of every bit of people’s communications. Private communications. Communications that no one has any business receiving except those who are intended to.

Proponents of such proposals always trot out the specious “ends justifying the means” rationale. What if the people speaking just happened to be planning some terrorism? What if the people using the Internet just happened to be illicitly sharing a file? What if, indeed.

Well, what if the people whose communications were intercepted were doing no such thing? Proposals like these make it meaningless to be innocent, because you are always treated as if you’re guilty regardless.

Furthermore, these ISP proposals put copyright infringement on par with terrorism. It’s egregious enough that innocent people are having their communications monitored in the ill-defined, rhetorically provocative-more-than-substantive never-ending fear-mongering “war” against terrorism. Yet it cannot possibly be seriously proposed that the consequences of an infringed song passing from one fan to another are anywhere near as stark.

Unfortunately that is what many ISPs and content companies are proposing, both in the United States and elsewhere. The juxtaposition I noted today as I surfed the Internet was the outcry in the US over monitoring while in Canada and Europe the very same thing was being seriously proposed. Which is not to say that the United States is safe from these tactics. While I think the law clearly prohibits such monitoring of private communications by ISPs, Congress is currently showing us that the law may in fact be violable. And changeable.

I do not know enough about the mechanics of similar “wiretapping” law or even general privacy law in these other jurisdictions to know whether these ISP-monitoring proposals might be similarly illegal under them. However I do know that the consequences of their application are just as dire as they would be anywhere. People cannot communicate freely when someone is listening in. And when there is no free communication, there can be no freedom period.

 Posted by at 11:18 am

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