Today I’m returning, probably for the last time, to the public policy questions surrounding today’s wiretapping technology. Thus far in the series (1, 2, 3, 4, 5, 6, 7, 8) I have described how technology enables wiretapping based on automated recognition of certain features of a message (rather than individualized suspicion of a person), I have laid out the argument in favor of allowing such content-triggered wiretaps given a suitable warrant, and I have addressed some arguments against allowing them. These counterarguments, I thnk, show that content-triggered wiretaps be used carefully and with suitable oversight, but they do not justify forgoing such wiretaps entirely.
The best argument against content-triggered wiretaps is the risk of abuse. By “abuse” I mean the use of wiretaps, or information gleaned from wiretaps, illegally or for the wrong reasons. Any wiretapping regime is subject to some kind of abuse – even if we ban all wiretapping by the authorities, they could still wiretap illegally. So the risk of abuse is not a new problem in the high-tech world.
But it is a worse problem than it was before. The reason is that to carry out content-triggered wiretaps, we have to build an infrastructure that makes all communications available to devices managed by the authorities. This infrastructure enables new kinds of abuse, for example the use of content-based triggers to detect political dissent or, given enough storage space, the recording of every communication for later (mis)use.
Such serious abuses are not likely, but given the harm they could do, even a tiny chance that they could occur must be taken seriously. The infrastructure of content-triggered wiretaps is the infrastructure of a police state. We don’t live in a police state, but we should worry about building police state infrastructure. To make matters worse, I don’t see any technological way to limit such a system to justified uses. Our only real protections would be oversight and the threat of legal sanctions against abusers.
To sum up, the problem with content-triggered wiretaps is not that they are bad policy by themselves. The problem is that doing them requires some very dangerous infrastructure.
Given this, I think the burden should be on the advocates of content-triggered wiretaps to demonstrate that they are worth the risk. I won’t be convinced by hypotheticals, even vaguely plausible ones. I won’t be convinced, either, by vague hindsight claims that such wiretaps coulda-woulda-shoulda captured some specific badguy. I’m willing to be convinced, but you’ll have to show me some evidence.