Overall, I’m extremely critical of the Bush administration’s flagrant disregard for civil liberties in the wiretapping controversy. But I think this is an entirely understandable mistake. The New York Times reports that the NSA sometimes accidentally listens in on a domestic call because they mistakenly believe that it to be a foreign call.
As electronic networks become ever more sophisticated and globalized, policymakers are going to face more and more thorny challenges when it comes to regulations that are tied to the “location” where a particular action is taken. Already we see this with telecom regulation, where technologies like VoIP are allowing people to do an end run around 20th century regulations based on the physical location of someone’s phone line. I imagine that sorting out other laws–copyright, fourth amendment, privacy regulations, etc–will become equally difficult as the Internet continues to extend its reach into every aspect of our lives.
Indeed, in the long run, the traditional distinction between domestic and foreign surveillance may be complete eviscerated by the march of technology. After all, it’s trivial to disguise the true origins of a network connection. if terrorists know the NSA isn’t allowed to eavesdrop on domestic communication, they could easily set up a tunnel so that their communications appear to originate on a U.S. network. In that case, would it count as domestic surveillance to eavesdrop on their conversation?
I’m not sure what the right answer is, but it’s a type of question we’re going to hear a lot in the next few years.
(Hat Tip: Julian over at Andrew Sulivan’s blog)