Clarifying the rules for government

One feature of today's mostly electronic, mostly Internet world is that governments tend to assume that it is legally OK to do many things that they would never have considered to be OK in the pre-Internet world. Examples include wanting to monitor all communications for everyone when it would have been clear that opening all postal mail and recording its contents as well as following everyone everywhere all the time would not have been acceptable. But should governments be legally able to do things like this just because they have the technical ability to do them?

Most, but by no means all, governments exist within a rubric of laws that are designed to constrain their actions so as to be fair to their citizens. In too many cases the technology of the electronic age has enabled governments to erode these constraints.

IN PICTURES: The recent history of governments vs. the Internet

In the U.S. there have been a number of worrisome developments with the prior and current administrations constantly testing the existing legal boundaries. Claims have been made that email on email service providers is fair game for discovery without any court review. Law enforcement officials insist that keeping track of wherever you go using a secretly planted GPS is also fine even if no court has authorized the placement. These are just two of many examples.

The eroded protections are not just for individuals. Corporations have also been impacted. For example, a growing number of corporations are outsourcing their email and would be affected by unrestricted law enforcement access to the data on email service providers.

A common rejoinder from people in authority is that people who have done nothing wrong have nothing to fear from omnipresent governmental observers. Many people have addressed this dismissal far better than I can -- see "Why Privacy Matters Even if You Have 'Nothing to Hide'" for an example.

Independent of the specific limits placed on government action it would be good to have a clear understanding on what those limits are. Digital Due Process is one organization working toward establishing such a clear understanding. An impressive list of organizations and individuals is behind Digital Due Process. 

The aim of this outfit is well described on its website under the heading "changes in technology have outpaced the law." In this section it describes some changes in technology, the impact of these changes on government abilities and the confusion the changes and actions have created in the legal protections available to citizens under the U.S. Constitution. The group then goes on to say:

"This murky legal landscape does not serve the government, customers or service providers well. Customers are, at best, confused about the security of their data in response to an access request from law enforcement. Companies are uncertain of their responsibilities and unable to assure their customers that subscriber data will be uniformly protected. The current state of the law does not well serve law enforcement interests either as resources are wasted on litigation over applicable standards, and prosecutions are in jeopardy should the courts ultimately rule on the Constitutional questions."

Digital Due Process supports a specific set of principles that should be kept in mind when defining the authority of government in various specific situations. Digital Due Process is one U.S.-based effort to clarify the balance of power between Internet users and government. I expect there are other efforts in the U.S. and elsewhere that have the same aim.

Success in such efforts will provide clearer guidelines for Internet users and clarity helps in most human endeavors.

Disclaimer: Many Harvard neighbors think that clarity on Harvard's plans would be a cool, if not always met, goal (see http://provost.harvard.edu/policies_guidelines/remote_locations.php). But I did not ask if the university advocated clarity in authority limits, so the above wish is my own.

Read more about wide area network in Network World's Wide Area Network section.

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