February 22, 1994 Law Enforcement and The Architecture of Cyberspace -- Should the Cops on the Beat Design the Electronic Street by David R. Johnson The Administration has made its position clear: it will seek to encourage the use of the "Clipper Chip" and push for legislation that will require electronic communications systems to be designed to facilitate wiretapping and surveillance in real time. There was a study -- and lots of discussion. But in the end, a Democratic President cannot afford to look soft on crime. So we have a set of proposals that, in somewhat breath-taking fashion, claim for the cops not only the right to walk the beat but a privilege to say just how the street will be designed (so the criminals will always stay in plain sight and within earshot). Maybe some streets in some cities have been designed with the convenience of law enforcement in mind. But no such origin accounts for our best public spaces and I can tell you, as someone helping to build one small electronic metropolis -- Counsel Connect -- that putting wiretapping at the top of the design priority list is a really dumb idea (no matter what you think of the civil liberties arguments). If we let the government tell us what communications systems to use, we will be forced into old-fashioned, centralized design. The kind that relies more heavily on hardware than software. The kind that doesn't look kindly on spontaneous activities not reported to some central database. The kind that does not distribute computation to the periphery of the system. The kind that does not facilitate "just in time" and "batch mode" communications. But the government's electronic law enforcement policies are worse than just bad technology policy. They threaten to convert the electronic citizen's presumptive right to communicate into a duty not to do so outside the reach of the police. They threaten to change the system operator's presumptive right to design a new system desired by the market into a duty to clear such plans first with central authorities. If we were talking about traditional media -- and the government were suggesting that everyone use resealable envelopes to make it easier for them to conduct authorized searches of mail (those nasty Fedex envelopes having made it ever so hard to inspect a letter) -- they would be laughed out of the discussion. They are suggesting a radical amendment to the constitution, in the guise of suggestion that they just want to preserve their "existing" wiretap powers in the face of threatening new technologies. What is it about the new electronic media that lets otherwise responsible officials suspend all recollection of pre-existing wisdom on public policy and constitutional issues? How did we ever get to a point where the same administration that promotes the digital superhighway can suggest that all cars that drive it must come equipped with see-through trunks? I guess radically new things allow people to question fundamental premises. That's generally a virtue -- the computer is helping lots of lawyers rethink how they can practice law more productively. But in matters of basic relationships between citizens and the police, fundamentally rethinking things is a very serious matter. Given the extent to which new electronic communications will create transactional data that technically allows everyone's activities to be tracked in greater detail than ever before, maybe we should welcome a fundamental re-evaluation of the balance of surveillance powers and privacy rights. For years, we have allowed telephone companies to submit "toll records" to the police with a bare minimum of process. Now that the "records" of electronic communications are more and more detailed -- more closely associated with an individual and revealing more about message contents -- maybe we should tighten up the standards under which the police have access even to "transactional" data. Moreover, given the international character of electronic communications, maybe we should rethink whether even good U.S. laws will be adequate to protect the privacy of the citizens of cyberspace against activities that occur on the same networks but in "foreign" lands. Counsel Connect appears particularly well-positioned to raise concerns about the standards applicable to government access to electronic communications. Lawyers cannot afford to use a messaging system that is not secure -- they would risk waiving their client's privilege if they did so. The records of lawyers' activity patterns on an online system are sensitive. And lawyers have always had -- or at least professed -- a special professional concern for individual rights. We plan to add our institutional voice to those of others calling for thoughtful reassessment of the Administration's policies. We welcome your suggestions and feedback. But we expect most of you to agree with this stance. After all, the ultimate question is who will get to have the last say in the design of the architecture of the electronic street -- those mainly concerned with the convenience of the gendarmes, or those who live and work there?
