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J. Edgar Hoover reportedly learned of Lucille Ball’s pregnancy before her husband, Desi Arnaz, did. Hoover, the famously invasive director of the Federal Bureau of Investigation, kept thick investigation files on scores of public figures and had an informant at the hospital where Ball’s pregnancy was confirmed. Hoover biographers say he called Arnaz with the news before Ball could. Few people, if any, want to return to an era where the government has the power—and the inclination—to stick its nose into details of citizens’ lives that are too personal for comfort. But after the terrorist attacks in the U.S. on Sept. 11, many people say they are willing to give up some rights and privacy to feel safer. The question is: How far to go? John Perry Barlow—a longtime defender of civil rights and co-founder of the Electronic Frontier Foundation (www.eff.org), which strives to protect rights online—worries that the government will go too far. He thinks new security measures will remove much of our ability to live anonymously, while, in fact, doing little to make us safer. For Stewart Baker, a partner with the Washington, D.C., law firm Steptoe & Johnson LLP (www.steptoe.com) and former general counsel to the National Security Agency (www.nsa.gov), the matter is simple: We were doing something wrong before, or the attacks would have been prevented. We need to figure out what failed and fix it. If that means a bit less freedom, so be it.
JOHN PERRY BARLOW: To yield to the terrorist assault by limiting American liberties is a repudiation of what we stand for. I am willing to discuss curtailing freedom if we can show that measures will greatly increase safety, but I have seen little that shows me that kind of result. STEWART BAKER: I have grown suspicious of any argument that includes the phrase, “If we don’t do this or do do this, the terrorists will have won.” People use that to indicate: “I don’t want to change my mind as a result of what happened.” Whatever we were doing before Sept. 11 in terms of security wasn’t good enough. We should be reconsidering “business as usual,” not clinging to it. BARLOW: Obviously, we weren’t doing some things right. But many of the initial panicky initiatives—such as parking your car a certain distance away from the airport terminal—are irritating and counterproductive. It also isn’t valid to take advantage of the opportunity to introduce a legion of restrictions on the Internet that had been promoted unsuccessfully in Washington for years. BAKER: Some airline-safety measures have an element of just doing everything that anybody ever thought of, without regard to how valuable an idea might be. That problem likely will get fixed. On the other hand, I don’t think that the right to curbside check-in was established by the Magna Carta. BARLOW: It is important to draw a distinction between practical readjustments and larger, potentially dangerous, ones. There is a danger in passing measures into law which, taken one at a time, might be innocuous, but which can create a matrix of possibilities that will have a chilling effect on freedom. BAKER: Having spent some time with the legislation that is being massaged on the Hill, I don’t see many threats to our essential freedom there. Most proposals are relatively modest adjustments. They are, by and large, proposals that have been kicking around for some years. BARLOW: That is part of what makes me suspicious. The fact that these provisions regarding use of the Internet were trotted out in detail the night after the attacks showed me that there had been people in Congress waiting to implement controls and surveillance methods that had been successfully rejected by Congress over the past decade. BAKER: But many current recommendations came from a report released earlier this year that examined whether the U.S. had an adequate response to the risk of mass terrorism. It found that we didn’t, but that report disappeared without a trace when it was released. It isn’t unreasonable for Congress to say now, “We made a mistake by ignoring that report. Let’s take another look and enact the recommended measures.” BARLOW: Still, many of the recommended surveillance tools would be used in ways that have nothing to do with terrorism. The excuse initially offered for them was fighting child pornography and drug trafficking. When the proposals were made originally, it was generally concluded by reasonable people that they would significantly limit civil liberties. BAKER: Let’s talk about the provision that has gotten the most attention: the one related to Carnivore—an electronic-surveillance system that intercepts all communications and records sent to or from the target of an investigation—and its use for Internet “trap and trace.” That process traditionally has been used to determine where telephone calls originated. The difference is that, now, instead of getting phone numbers, you collect e-mail information. BARLOW: That is not a fair analogy. All you are doing with a trap-and-trace is collecting phone numbers. You don’t know who is at that number. With Carnivore, you learn not only the individual to whom correspondence is sent, but also get header information, which includes detail about the subject, and the location from which the message was sent. BAKER: I believe the subject line is filtered out by these machines before the information is provided to law enforcement. BARLOW: The FBI hasn’t been forthcoming about Carnivore’s inner workings, so I don’t know with certainty. But if the header information is provided and those data are analyzed, the FBI and other agencies are capable of Internetwide surveillance relatively unsupervised by the judiciary. I am very concerned about this drift-netting. BAKER: The data collected won’t concern investigators if they don’t have a connection to terrorists. BARLOW: But once data have been gathered, they can be used for any purpose. BAKER:If I were writing the legislation, I might say, “We want to restrict where these data go after they have been gathered, and we want to see how they will be stored electronically.” I would set up audit tools. I also would make sure people understand that they had better have a good justification if they start doing searches on the information for some other matter. BARLOW: With that kind of audit in place, I would feel much less anxious. There is another thing, though. The principal obstacles to FBI and electronic surveillance have been the bureaucratic overhead involved. Carnivore eliminates the overhead, automates the entire process, and can be deployed Internetwide. It needs an organizational constraint, as well as the judicial one. BAKER: Ensuring that law enforcement pays the full cost of what it asks Internet service providers to do when they provide the data would improve things somewhat. At least searches wouldn’t be subsidized. BARLOW: Still, it isn’t a great idea to give such generalized powers to the federal government. We know that Lord Acton was probably right when he said that power corrupts. BAKER: I believe our democratic values are stronger than that. We had a period from 1930 until 1968 when wiretapping wasn’t unlawful. It was done routinely and was abused—at least by J. Edgar Hoover—and we didn’t descend into the night of authoritarianism. In fact, we eventually restricted those authorities. I think people quite properly would give up some of their current liberty for better protection. I read a moving e-mail that said, “There are 7,000 people who probably would have cheerfully let the government read all of their e-mail if they could go home and see their kids tonight.” In fact, in Washington, we have had 20 warnings about not giving up our essential liberties for every serious proposal to give one up. Currently, the administration’s proposal for security measures isn’t being toughened by Congress. It is being weakened. Protection for civil liberties is being added. BARLOW: I am proud of Congress for showing more restraint than their constituents would have them show. But how long will that resistance prevail, assuming terrorist attacks continue? We also need to discuss encryption, the methods used to disguise messages. I believed it was generally understood that “strong” encryption [which makes it virtually impossible for even the most powerful computers to decode a message] was going to be necessary to develop a robust Internet economy. Now I hear proposals that would restrict encryption in very direct ways. I am concerned for practical and philosophical reasons. BAKER: The effort to revive the debate over encryption likely won’t prevail. The Clinton administration was beaten so thoroughly on the issue, and all of the proponents of regulating encryption have left government. I don’t see a sign that the new administration wants to pick up that fight and risk having the same mess. BARLOW: I wish I had your sanguine view. Strong encryption is vital to the ability of people to communicate without fear of reprisal, a fundamental component of free speech. That is especially true because of the increased capacity of law enforcement to monitor communications. I also want to discuss the proposal to redefine minor computer crimes as acts of terrorism that carry an extremely harsh penalty: life without parole. BAKER: I haven’t looked closely at the proposals, but I don’t see a need for them. They aim to combat cyberterrorism, which isn’t a significant threat. I once called it not a weapon of mass destruction but a weapon of mass annoyance. Shut down the Internet for a day and people would be very upset, but the attack would pale in comparison to the mass murders in New York, Washington, and Pennsylvania. Therefore, it won’t have as much appeal to terrorists. BARLOW: The problem is that we are at war with the bogeyman, which means we are essentially at war with the monsters of our own imagination. When you are at war with any possible thing that could happen, fear knows no bounds. If you start thinking about every conceivable thing a terrorist could do and try to prevent that, you set into motion a whole way of being that is going to be very injurious to the foundations of American liberty.
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