November 11, 2024

Twenty-First Century Wiretapping

The revelation that the National Security Agency has been wiretapping communications crossing the U.S. border (and possibly within the U.S.), without warrants, has started many angry conversations across the country, and rightly so. Here is an issue that challenges our most basic conception of the purposes of government and its relation to citizens.

Today I am starting a series of posts about this issue. Most discussions of the wiretap program focus on two questions: (1) Is the program legal? and (2) Regardless of its legality, does the program, as currently executed, serve our national interest (bearing in mind the national interest in both national security and citizens’ privacy)? These questions are surely important, but I want to set them aside here. I’m setting aside the legal question because it’s outside my expertise. I’m setting aside any evaluation of the current program for two reasons. First, we don’t know the exact scope of the current wiretap program. Second, most people – on both sides – think the second question is an easy one, and easy questions lead to boring conversations.

I want to focus instead on the more basic questions of what the extent of national security wiretapping should be, and why. The why question is especially important.

The first thing to realize is that this is not your parents’ wiretap debate. Though the use (and sometimes misuse) of wiretapping has long been a contentious issue, the terms of the debate have changed. I’m not referring here to the claim that 9/11 changed everything. What I mean is that wiretapping technology has changed in ways that ought to reframe the debate.

Two technology changes are important. The first is the dramatic drop in the cost of storage, making it economical to record vast amounts of communications traffic. The second technology change is the use of computer algorithms to analyze intercepted communications. Traditionally, a wiretap would be heard (or read) immediately by a person, or recorded for later listening by a person. Today computer algorithms can sift through intercepted communications, looking for sophisticated patterns, and can select certain items to be recorded or heard by a person.

Both changes are driven by Moore’s Law, the rule of thumb that the capability of digital technologies doubles every eighteen months or, equivalently, improves by a factor of 100 every ten years. This means that in 2016 government will be able to store 100 times more intercepted messages, and will be able to devote 100 times more computing capability to its analysis algorithms, compared to today. If the new world of wiretapping has not entirely arrived, it will be here before long.

So government will have greater eavesdropping capabilities and, more interestingly, it will have different capabilities. How should we respond? Surely it is not right simply to let government do whatever it wants – this has never been our policy. Nor can it be right to let government do no wiretapping at all – this has not been our policy either. What we need to understand is where to draw the line, and what kind of oversight and safeguards we need to keep our government near the line we have drawn. I hope that the next several posts can shed some small amount of light on these questions.