Can You Overhear Me Now?

The Justice Department has asked the Senate for help in extending hidebound, phone-company style wiretap capability into new Internet-based phone calls (called “VoIP” for Voice over Internet Protocol).  They argue leaving the new technology unregulated would make it harder to monitor possible terrorist communications.

Meanwhile, some states hope to regulate these same phone services so they can collect taxes from and otherwise control them.  To its credit, a skeptical Senate is considering legislation to prevent such interference with VoIP.

Telling opportunistic states to back off is straightforward.  But Washington’s desire for easy surveillance, and the ways it is increasingly facilitated, is a tougher problem.       

The government has already instituted controversial and invasive computer-assisted airline passenger screening, escalated e-mail monitoring (fostered by the USA Patriot Act), and sought the Total Information Awareness data-mining project.  Even a national ID card was proposed.      

Along with wiretaps and data mining there is biometrics — such as voiceprints, retina, iris and face scanners, and digitized fingerprints.      

Taken together, real-time monitoring of our conversations, whereabouts, movements, or transactions is already at hand.  VoIP wiretapping is just the latest.      

Washington must better explain its philosophy regarding surveillance technologies.  No one wants to be monitored round the clock by the Homeland Security Department.  Government should restrict the liberty of dangerous criminals and enemies—not that of innocent citizens.  At the very least, new surveillance powers should apply only to terrorism, not to routine criminal investigations.      

Unfortunately, law enforcement infrastructure like Internet phone wiretaps will ease the monitoring of nonterrorists.  Perpetrators of victimless crimes—the gambler, perhaps the marijuana user—will surely find themselves under renewed scrutiny, however beyond the rationale of combating terrorism.      

While surveillance can and likely will be enhanced to account for the new realities of instant electronic communications, Fourth Amendment protections against unreasonable and warrantless searches need not suffer.  For example, securing wiretap approvals for an individual, rather than separate ones for each phone, can make sense if requirements that judges approve wiretap requests are enhanced, too.  The proper approach is not to facilitate Netwide eavesdropping, but to instead obtain a warrant and wiretap, record, film or use software bugs to “spy” on the keystrokes of a particular suspect.      

With regard to the new phone-tapping campaign, founder Jim Harper noted: “The law enforcement cart is coming before the civil society horse.  The communications infrastructure is being created with eavesdropping in mind before there is any evidence of [the need for] it.”  Besides, Mr. Harper notes, criminals will use offshore VoIP or open source VoIP instead of major carriers.      

As a practical matter, enhanced Internet phone surveillance could mean costly equipment upgrades and industry regulation to run the scheme.      

Indeed, regulating communications may encumber us far more than the terrorists, who can still encrypt as well as use other means of communication.  Terrorists can use face-to-face contact, human messengers, compose messages in free e-mail accounts (perhaps sharing a password instead of sending the message), or conceal messages in online pictures and other files.      

Another consequence: When government insists upon monitoring us, private firms cannot promise to safeguard our privacy as they otherwise could.      

If monitoring calls, mining massive databases of credit card purchases, car rentals, library books, airline ticket purchases, and so on, is paramount, and then banks, airlines, hotels, and other private businesses will be forced routinely to give our private information to the government against our wishes.  (And many doubt government will discard incidental data collected on nontargets.)      

The VoIP debate highlights the urgency of better defining our Fourth Amendment protections in the digital age.  We need to question government’s need to spy.  The safeguards are not apparent.      

The root of the terrorist threat America faces does not lie entirely in cyberspace.  Addressing shortcomings in existing national security practices in the non-cyber world is at least as important as broadening surveillance powers.      

Freedom of communication allows democracy and individual liberty to flourish.  Surely it’s preferable terrorists are forced to change their behavior, while we retain our openness, and freedoms of mobility and interaction.  Congress must carefully weigh permanent changes impacting hard-won rights to anonymity and privacy; it must do so now in the VoIP debate.