After the year-and-a-half-long public battle on encryption between the U.S. government and technology companies such as Apple, as well as all the pro-surveillance laws passed in the past 15 years, Senator Ron Wyden (D-Oregon) is now asking for a rethinking of U.S. privacy laws and protections to better address the realities of the 21st century.
The FBI recently tried to use the more than two century-old All Writs Act to compel Apple to write code that would undermine the security of its devices and the privacy of its customers. That law was written almost 100 years before the first telephone was invented.
The Electronic Communications Privacy Act was passed in 1968 and includes relics of history such as considering an email “abandoned” if it’s older than 6 months, making it possible for law enforcement to request it from a company without a warrant. However, there is some effort now to update this law for the current century under the new Email Privacy Act.
In a recent statement on his Senate page, Senator Wyden, who’s also a member of the Senate Intelligence Committee, also commented on how vastly the intelligence collection powers of the government have increased in the past couple of decades, thanks to technological progress:
“The rapid advances in technology over the past 20 years threaten the rights of every single American more immediately and more personally than most people fully understand,” Wyden said on Wednesday.“For centuries, individual liberty was protected by technological limitations. Gathering real-time personal information about a country’s entire population was impossible. It would have required more resources than any government could muster.”“Now those physical limitations have largely disappeared,” Wyden said.“Governments around the world now have the technological capability to collect files on every single citizen that would put the Stasi’s work to shame.”
In the full statement, Wyden is also calling out FBI’s “going dark” argument. The FBI has been promoting that argument to get backdoors in encryption. The U.S. government has essentially been arguing that it’s not as easy as it was a few years ago to spy on everyone, when virtually nobody used secure connections for their communications or couldn’t encrypt their devices.
However, as some studies have shown, if anything, there is now a “Golden Age of Surveillance,” not a Dark Age. The government used to be physically limited in its ability to spy on everyone at once in real-time, but all of that has now been made possible.
Wyden also talked about how the debate of “privacy vs security” is framed poorly, because it’s really about “more security vs less security.” As Apple and other companies have said before, weakening encryption and digital security in general means people will be less safe, as criminals can get access to their personal data, including private conversations, photos, financial and healthcare records.
Senator Wyden proposed a few guiding principles that he believes the U.S. needs to follow if its citizens want their privacy protected in the future.
1. Protecting Strong Encryption
Wyden’s own Secure Data Act would ban the government from compelling companies to build backdoors into their products or weaken their security.
2. Overhauling The Third Party Doctrine
The Third Party Doctrine, another 20th century relic, states that people have no expectation of privacy as long as their data is stored by another company. In the age of cloud computing, where most of our data is processed by other companies, this type of legal theory doesn’t make sense anymore.
3. Increasing Transparency
Wyden wants at least three Congressional hearings held every year to discuss the privacy impacts of various surveillance laws, authorities and practices. This would give the government more information on which surveillance powers are actually working or if they work at all, and it would also allow Congress the opportunity to see if those powers are abused.
Every time there’s a terrorist attack, law enforcement and intelligence agencies ask for an increase in surveillance powers, even though whenever there’s a serious audit done on various surveillance powers, it seems that they aren’t very effective at preventing such attacks. Perhaps some surveillance powers are necessary, but Congress and the public need to see more hard data to see which ones are needed and why.
Such data could, for instance, reveal that mass surveillance is in fact hurting the prevention of attacks and that focusing the resources on more targeted surveillance would be more effective.
4. Being On High Alert Against Abuses
Senator Wyden warned that the Department of Justice is now seeking a change of rules on how to use warrants, which would allow law enforcement to use a single warrant to hack into the computer of any victim of a suspected hacker. This would put the victims of the hack on the same level as the hackers themselves, and it would allow law enforcement to hack millions of computers with a single warrant.
5. Hiring Technologists
Wyden believes that too few government employees actually understand technology in general, not to mention the implications of things such as backdoors. He urged the government to hire more technologists to help law enforcement adapt to the new challenges that new technologies may pose to their investigative techniques. This could avoid an overreaction to new technologies from law enforcement and the infringement on people’s rights.
Wyden ended his statements on an optimistic tone, saying that just like the public defeated bills such as SOPA and PIPA, which were virtually guaranteed to pass, we can also win these privacy protections if people keeps pressuring their representatives to enable them.
Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu.