"Going Dark" vs. a "Golden Age of Surveillance"
It’s a policy debate that’s been going on since the crypto wars of the early 1990s. The FBI, NSA, and other agencies continue to claim they’re losing their ability to engage in surveillance: that it’s “going dark.” Whether the cause of the problem is encrypted e-mail, digital telephony, or Skype, the bad guys use it to communicate, so we need to pass laws like CALEA to force these services to be made insecure, so that the government can eavesdrop.
The counter-argument is the “Golden Age of Surveillance”—that the massive increase of online data and Internet communications systems gives the government a far greater ability to eavesdrop on our lives. They can get your e-mail from Google, regardless of whether you use encryption. They can install an eavesdropping program on your computer, regardless of whether you use Skype. They can monitor your Facebook conversations, and learn thing that just weren’t online a decade ago. Today we all carry devices that tract our locations 24/7: our cell phones.
In this essay, CDT fellows (and law professors) challenge the “going dark” metaphor and make the case for “the golden age of surveillance.” Yes, wiretapping is harder; but so many other types of surveillance are easier.
A simple test can help the reader decide between the “going dark” and “golden age of surveillance” hypotheses. Suppose the agencies had a choice of a 1990-era package or a 2011-era package. The first package would include the wiretap authorities as they existed pre-encryption, but would lack the new techniques for location tracking, confederate identification, access to multiple databases, and data mining. The second package would match current capabilities: some encryption-related obstacles, but increased use of wiretaps, as well as the capabilities for location tracking, confederate tracking and data mining. The second package is clearly superior—the new surveillance tools assist a vast range of investigations, whereas wiretaps apply only to a small subset of key investigations. The new tools are used far more frequently and provide granular data to assist investigators.
A longer and more detailed version of the same argument can be found in “Encryption and Globalization,” forthcoming in the Columbia Science and Technology Law Review.