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Clarifying the rules for government


'Net Insider By Scott Bradner, Network World
October 03, 2011 02:06 PM ET


One feature of today's mostly electronic, mostly Internet world is that governments tend to assume that i= t 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 communicati= ons 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? <= o:p>


Most, but by no means all, governme= nts 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 the U.S. there have been a numbe= r 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 usin= g 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 f= rom omnipresent governmental observers. Many people have addressed this dismiss= al far better than I can -- see "W= hy 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.&nb= sp;

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 do= es not serve the government, customers or service providers well. Customers ar= e, at best, confused about the security of t= heir data in response to an access request from law enforcement. Companies are uncertain of their responsibilities and unable to assure their customers th= at subscriber data will be uniformly protected. The current state of the law d= oes not well serve law enforcement interests either as resources are wasted on = litigation over applicable standards, and prosecutions are in jeopardy should the cour= ts ultimately rule on the Constitutional questions."


Digital Due Process supports a specific set of principles that should be kept in mind when defining the authori= ty 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 coo= l, 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.


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