Law in the Internet Society
-- DavidKellam

As household internet access was popularized in the United States during the 90’s, a debate of which only the early-adopters and fathers of modern day internet were aware or equipped to engage in was aroused. This debate was over encryption, and several parties had dramatically different fantasies concerning the privacy of our online future. Generally, privacy advocates argued for accessible encryption to offset the consequences of an inherently insecure structure, while others feared that an encrypted internet would provide too available a platform for organized criminals, and that anonymity would foreclose the possibility of surveillance with which the internet enticed law enforcement and the politicians representing their interests.

This debate was simultaneous with the affectionately captioned Crypto Wars, the international struggle in which, among other things, the United States, intent on encrypting their own confidential information, irrespective of whether encryption was made available to Americans by and large, implemented export controls on strong encryption software to keep online protective latitude out of the hands of the international community, and, essentially, to fill their networks with substandard encryption to which the U.S. would have access. When privacy advocates had domestic success in the encryption debate, remnant regulatory barriers still remained hindering the international dissemination of this now pseudo-standard American encryption software. While many of these barriers were ultimately reversed towards the end of Clinton’s presidency and the (alleged) end of the Crypto Wars, international consumers are still subject to insecurity because protocols stemming from these regulations-- namely protocols meant to enable the U.S. government to backdoor certain networks-- remain in the default settings of many online systems, and commonplace cybercriminals are now able to exploit these no-longer-sophisticated vulnerabilities.

It isn’t just the vestige of 90’s security vulnerabilities that negatively impact our modern internet environment. Unbeknownst to many of the privacy advocates of the preceding decade until 2013, and still unbeknownst to most, the NSA continues to undermine encryption standards. Whether through these formerly implemented backdoors, intrusion into VPNs, or merely misuse of our apparent modern disdain for our own privacy, the privacy advocates of old are realizing that their victories were for naught in the current system. Furthermore, federally accepted and oftentimes supported channels of data mining and sharing have constructed economies of our private information and their respective market-leaders will fight tooth-and-nail, as did the great Tobacco companies decades ago, to protect the most lucrative retail operation in human existence.

When corporate and government greed intersects as holistically as it does with respect to monitoring and marketing our private behavior, it seems that nebulous options are all that remain. Fortunately, however, the Courts could conceivably leverage our constitutional rights against both corporate and government interests. The Courts have built considerable stare decisis surrounding the notion of an American right to privacy. By supplanting the logic of Lawrence v. Texas into the conversation surrounding internet anonymity, the vulnerabilities preeminent in the systems on which our internet relies can assume a legal barrier. While our current internet may not support such a requirement, a federally mandated network of encrypted nodes, necessitated by a judicial decree respecting a fundamental right to privacy within one’s home, could overhaul the current system enough to render age-old vulnerabilities innocuous- when input data or payment information cannot be designated to a particular individual, its value will drop.

This solution, however, would require a recognition that not only does a right to privacy within one’s home extend to their online behavior, but, that given the insecurities built into the current network, a form of protection other than an anonymizing network is not more easily achieved. This appears to be the case; many internet users opt into encrypted virtual networks and many more undoubtedly would if their use wasn’t inconvenient, unconventional, and even taboo. Furthermore, a mainstream ignorance of the current network could cause policy-makers to turn to privacy experts if required to do so by the Courts, and these privacy experts can illustrate the manageability and functionality of currently existing private networks of encrypted nodes and can argue the value of a national, encrypted virtual network hosted in state and government facilities throughout the United States and even throughout the nations in which our presence and diplomatic relationships would accommodate such an offering.

It may be argued that any such decree would place an undue restrictive barrier on the commercial practices of the companies that collect our information and feed it to the federal government, however, based on the growing influence that online services have on our life and the comparative disadvantage that arises when we opt out of restrictive online contracts concerning our data, it is increasingly important not that the Courts create novel commercial restrictions, but that the Courts simply realize that this activity has been in violation of our precedentially recognized right to privacy, and thereby illegal, since the beginning.

In a new world, in which the internet has fundamentally altered the nature of human interaction, the basic assumption of privacy, at least within the confines of one’s home, should remain assumed and necessary for our liberties to be or even appear protected. If a state’s alleged interests are insufficient to intrude upon the sexual rights of a minority of consenting adults, commercial interests and poorly articulated federal interests must be insufficient to allow for an equal intrusion on every American. As soon as our online identities became as central to our lives as our residence, marriage, lodging, transportation and the purchasing of goods, access to online privacy protection should have become as judicially cognizable as protection to the access of these other central channels. And, as the Courts have ensured access to protection of these other channels, even in the face of completely private businesses seeking to employ discriminatory practices and of a systematic governmental approach to protecting these discriminatory practices, it is time that access to true privacy is given equal regard on our menu constitutional principles.

What this draft most needs is an uncompromising tightening. Each sentence should be reconsidered: what does it mean to say, and how can it do so in the fewest possible words? A sentence like "In a new world, in which the internet has fundamentally altered the nature of human interaction, the basic assumption of privacy, at least within the confines of one's home, should remain assumed and necessary for our liberties to be or even appear protected," makes it impossible to think clearly whatever thought it carries.

Once you have found out what's in here, I suspect it will need reorganizing. There's an argument here about secrecy, and one about anonymity, and they are tangled up somewhat in the history of the crypto wars (part one only, really). I think once you have put each idea clearly you will see better how to sequence them. Then we can figure out how to use the space you have gained in order to make the argument richer.


Webs Webs

r2 - 04 Dec 2017 - 22:48:36 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM