A couple weeks ago, mass Government surveillance received a setback in the courts. The ruling is a bit arcane…if you follow the TV show NCIS, you know they have wide enforcement authority for military personnel, in this case scanning online for military personnel involved in child pornography. Apparently their scans identified a civilian involved in this heinous business, and they turned that person’s case over to civil authorities…in violation of Posse Comitatus, the 1878 law that prohibits military enforcement of State laws.
Then Apple and Google, in a meeting of the minds almost as unusual as that in Congress, each announced that the default settings on new phones would no longer make it possible for them to access data on individual devices, even when faced with legitimate search warrants. The firestorm of protest from the Law Enforcement community was very loud, indicating the move would endanger public safety, and was directly criticized by FBI Director James Comey. With the loss of public trust resulting from revelations of mass surveillance, the once cozy relationship between Law Enforcement and industry has been shattered.
Congress stepped into the void with passage of a bill to curb mass surveillance in the House and a similar bill passing the Senate Judiciary Committee before…recess for the midterm elections. The Courts are providing 90-day extensions continuing the previous law in the absence of new law, but how that will work when Google and Apple can technically no longer comply is anyone’s guess.
There are legitimate competing demands here, but as a country, we’ve botched it. People deserve and expect privacy, not privacy with secret peepholes. For Law Enforcement, and for the Intelligence Community, there are legitimate reasons to want to gain access to private information under some circumstances, and methods via the Court system to have that access authorized. Administration discussions have included third-party escrow of such information, and companies such as Mach37’s cohort company iAspire are working towards similar commercial capabilities.
Yes, privacy has regained it’s mojo. Even though I am a privacy advocate however, this is not cause for loud cheering…this is not a football game where my side has suddenly put some points on the board. It is important for our country, for effective functioning of our Law Enforcement and judicial institutions and for the safety of each of us that we find a workable balance. The public discourse, the halting steps towards new law, the emerging technical solutions all point towards the possibility of such a balance. Let’s hope we can reach that goal before profits, or terrorism, or politics manage to derail the momentum.
UPDATE: Read the Washington Post editorial on this topic, published October 3, 2014