Will the Internet Destroy the Foreign/Domestic Distinction?

by on December 21, 2005 · 2 comments

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)

  • jordan vance

    Tim,

    While that’s a worry, it’s always been true that this could “accidentally” happen. In fact, as I heard on NPR last night, that regardless of whether a warrant was issued by the FISC, if domestic calls were intercepted they had to be basically dumped from the information used and forgotten about.

    How hard will this be in the long run to make sure that it’s not a domestic call? A lot harder for sure. But it was always possible to disguise where one was calling from.

    It seems to me that this is just another iteration of the encryption quandry. How can we release strong encryption techniques into the wild, when they might just be used against us? What this goes to show is that a focus needs to be turned towards human intelligence as SigInt (not sigint or sigalarm) becomes more ubiquitous but altogether more difficult to gather.

    It is, of course, difficult to map legalities from the real world into the virtual world. Look, the idea of copyright isn’t broken. The duration of copyright is. People are violating copyright left and, well, right, and so far nobody has been able to figure out how to say no, you can’t do that. The phone regulations? I don’t find them to be a huge problem. For E911 calls, the user is taking that risk. That is a question of the technology being able to catch up to the law. The 4th amendment still holds those protections. If the government accidentally acquires domestic intel in a foreign intel investigation, they can’t use it. IF the government is breaking the law, then it is a problem with the government, not the technology.

    But what about electronic communications? Wasn’t it possible to bounce calls all over the world, a la Sneakers? I just see this as an extension of that.

  • jordan vance

    Tim,

    While that’s a worry, it’s always been true that this could “accidentally” happen. In fact, as I heard on NPR last night, that regardless of whether a warrant was issued by the FISC, if domestic calls were intercepted they had to be basically dumped from the information used and forgotten about.

    How hard will this be in the long run to make sure that it’s not a domestic call? A lot harder for sure. But it was always possible to disguise where one was calling from.

    It seems to me that this is just another iteration of the encryption quandry. How can we release strong encryption techniques into the wild, when they might just be used against us? What this goes to show is that a focus needs to be turned towards human intelligence as SigInt (not sigint or sigalarm) becomes more ubiquitous but altogether more difficult to gather.

    It is, of course, difficult to map legalities from the real world into the virtual world. Look, the idea of copyright isn’t broken. The duration of copyright is. People are violating copyright left and, well, right, and so far nobody has been able to figure out how to say no, you can’t do that. The phone regulations? I don’t find them to be a huge problem. For E911 calls, the user is taking that risk. That is a question of the technology being able to catch up to the law. The 4th amendment still holds those protections. If the government accidentally acquires domestic intel in a foreign intel investigation, they can’t use it. IF the government is breaking the law, then it is a problem with the government, not the technology.

    But what about electronic communications? Wasn’t it possible to bounce calls all over the world, a la Sneakers? I just see this as an extension of that.

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