Although J. Edgar Hoover may be dead, his spirit remains alive and well.

This past Monday, the New York Times broke a story about proposed legislation that would make it easier for law enforcement to conduct wiretaps on the Internet. In essence, the legislation and accompanying regulations would mandate that all communication services, including BlackBerry and Facebook, be technologically capable of complying with a wiretap order.

Not surprisingly, the story traveled the Internet relatively quickly. At first glance, two legal problems with the proposed legislation exist.

First, there is the Constitutional issue of privacy. The Communications Assistance to Law Enforcement Act of 1994 already requires phone and broadband networks to have the capacity to comply with a wiretap order. Based on that, the FBI’s General Counsel claims that the new legislation would not expand the authority already granted to law enforcement agencies. However, to put it mildly, phone networks and the Internet differ. Governmental wiretaps on communications sent through the Internet would allow the government unprecedented access to private information. While the Constitution does not explicitly recognize a right to privacy, there is a serious Fourth Amendment search and seizure issue in play. Also, although the Supreme Court would most likely be reluctant to extend substantive due process, such a broad intrusion into the private sphere likely raises more than just Fourth Amendment  issues.

Furthermore, there are already growing concerns that the government has already gone too far with wiretapping in the years since 9/11. Recently, the ACLU and the New York Civil Liberties Union filed a lawsuit challenging the Constitutionality of the FISA Amendments Act (FAA) of 2008 that expanded government use of wiretaps without a warrant for e-mails and phone calls. The case is currently on appeal in the U.S. Court of Appeals for the Second Circuit.

Almost quicker than the story could break, the ACLU condemned the proposed legislation using very strong language.

The second legal issue  is the mind-boggling problem of enforcement. Ignoring for a moment the security issue in forcing all Internet communications to easily be accessible to a wiretap (not easy to do), the Internet is a unique regulatory challenge. Massive and almost completely decentralized, any governmental effort to regulate the Internet, especially in terms of technology forcing, will likely be complex and expensive. There’s also the problem of forcing the compliance of international communication services and websites.

Whether the U.S. has the jurisdiction to enforce such regulation is a difficult question in itself. Even then, as a practical matter, the issue of whether any enforcement mechanism could compel compliance remains unclear. The most obvious way would be to block American access to any Internet service that does not comply with the regulation. However, that solution uncomfortably resembles the recent China-Google confrontation, and would likely result in political backlash over censorship.

In any case, the legal implications of the proposed legislation all awkwardly circle the problem that the Internet, still in its relative infancy, remains a completely new phenomenon in human civilization that is not well adaptable to traditional government regulation. While the government, in proposing this legislation, indicates that it believes regulation is feasible, it perhaps underestimates the challenges it faces and the privacy upon which it intends to intrude.

Edwin Chadwick

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