Privacy concerns

The Obama administration wants new powers to police the Internet, arguing their ability to wiretap criminal and terrorism suspects is “going dark” as people increasingly communicate online instead of by telephone. “Essentially, officials want Congress to require all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct ‘peer to peer’ messaging like Skype — to be technically capable of complying if served with a wiretap order,” The New York Times reports.

The mandate — which the administration plans to submit to lawmakers next year — would include being able to intercept and unscramble encrypted messages.

The FBI downplays the matter.

“We’re not talking expanding authority,” said Valerie E. Caproni, general counsel for the FBI. “We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security.”

Imagine the outrage on the Left — the cries that this takes us to the threshold of an electronic police state — had this proposal been offered up by George Bush or Dick Cheney.

The FBI’s argument that these proposals “don’t expand our authority” is particularly worthy of close examination.

The current authority is to intercept certain types of communications, in which the courts have ruled — even if the rationale is often strained — the user has little or no “reasonable expectation of privacy.” One might use the example of a postcard, a letter and a message committed to memory by a trusted courier.

Anyone writing a postcard surely recognizes it will pass through many hands; the expectation that the message will remain private is minimal.

But we expect, under the Fourth Amendment, that a law enforcement officer must present a sworn affidavit to a judge, offering probable cause to believe a crime is underway, in order to open and read our sealed letters.

In the third example, what authority the government could have to compel a private messenger to reveal our private business is hard to imagine.

The error comes when government is allowed to commingle the three, implying that because the government may freely read our postcards, a new law allowing them to extract information from private couriers “by any means necessary” would “only preserve our ability to execute our existing authority.”

Instead, the “default setting” should be the preservation of our privacy, which is necessary to our freedom. Expansion of the surveillance state should not be some casual undertaking, under the all-purpose rationale that “The law-abiding will have nothing to hide.”

In an era when in the blink of an eye we can become “law-breakers” by using the wrong kinds of light bulbs or washing machines, through failure to buy medical insurance or issue “1099” tax forms to anyone we’ve hired to mow our lawns, such rationales are less and less comforting.

Congress should be highly skeptical of any further erosion of our privacy.