Every time there is some traumatic terrorism event like what just happened in Paris there is a renewed call by governments for better surveillance and security measures. And every time that happens, the advocates of privacy sound a loud warning. What I find most interesting about this back and forth between the two sides is that it’s not events or even public policies that are driving the battle between security and privacy, but technology.
Just during the last decade there has been a number of technologies that have assaulted our privacy – encryption, big data, cloud computing, and advertising spyware. And we are fast approaching new threats from drones and from Internet of Things sensors everywhere.
The real battle between security and privacy happens when we introduce new innovations that can invade our privacy followed by countermeasures against those new technologies. There are plenty of politicians on both sides of the privacy issue who think that creating new laws is the way to protect privacy. But there are no laws that are going to flexible enough to keep up with the new threats we are constantly seeing in the real world.
Consider the traditional privacy laws. There have been wire-tapping laws on the books for decades which are now completely obsolete. The FBI convinced the FCC a few decades ago to create a set of laws called CALEA that gives the FBI the right to subpoena ISPs and get the records of suspected law breakers. ISPs and telcos spend a lot of money to stay compliant with these rules and yet I can’t think of one of my clients that has actually gotten a CALEA request from the FBI. ISPs do often get requests from local law enforcement asking for calling records under older wire-tapping laws, but not a peep out of the CALEA folks.
And this is because those laws were obsolete before the ink was dry on them. The CALEA rules were written not long after we had migrated from dial-up to DSL and there was no such thing as the dark web and disposable cell phones and all of the other ways that serious criminals use to avoid law enforcement.
What typically happens with a new technology is that it gives one side – the police or the bad guys – a temporary advantage. But there is always a technological counterpunch as somebody on the other side figures out how to defeat and neutralize each new technological development.
Edward Snowden showed us that law enforcement sometimes is so desperate for an edge that they collect data illegally in violation of the basic rights granted to US citizens by the fourth amendment. But even that is only a temporary edge. There are now numerous groups developing strategies to counteract widespread government surveillance.
There have been numerous attempts to pass surveillance and security laws starting with the Patriot Act. But industry experts say that most of the laws that try to give the government more power are ineffective, again because technology moves a lot faster than legislative bodies.
So what we see is a cat and mouse game. The NSA spies on us and so companies like Apple develop encryption that makes it hard or impossible for the NSA to gather anything useful. And there are more and more web services that either automatically encrypt or which offer that as an option.
It seems that the privacy advocates are winning the long term fight, and this is because there are ways around almost any tool the government or big business can use to spy on people. I’ve read several articles recently that talk about how even in China people are finding ways to bypass the strict security of the Great Firewall of China. But the fight is a long way from over because there are always going to be tools that come out that can be used to spy on people and there will then be ways to defeat those measures. We are likely to see this battle for decades to come.