The political firestorm over former U.S. Rep. Mark Foley’s salacious instant messages hides another issue, one about privacy. We are rapidly turning into a society where our intimate conversations can be saved and made public later. This represents an enormous loss of freedom and liberty, and the only way to solve the problem is through legislation.
Everyday conversation used to be ephemeral. Whether face-to-face or by phone, we could be reasonably sure that what we said disappeared as soon as we said it. Of course, organized crime bosses worried about phone taps and room bugs, but that was the exception. Privacy was the default assumption.
This has changed. We now type our casual conversations. We chat in e-mail, with instant messages on our computer and SMS messages on our cellphones, and in comments on social networking Web sites like Friendster, LiveJournal, and MySpace. These conversations—with friends, lovers, colleagues, fellow employees—are not ephemeral; they leave their own electronic trails.
We know this intellectually, but we haven’t truly internalized it. We type on, engrossed in conversation, forgetting that we’re being recorded.
Foley’s instant messages were saved by the young men he talked to, but they could have also been saved by the instant messaging service. There are tools that allow both businesses and government agencies to monitor and log IM conversations. E-mail can be saved by your ISP or by the IT department in your corporation. Gmail, for example, saves everything, even if you delete it.
And these conversations can come back to haunt people—in criminal prosecutions, divorce proceedings or simply as embarrassing disclosures. During the 1998 Microsoft anti-trust trial, the prosecution pored over masses of e-mail, looking for a smoking gun. Of course they found things; everyone says things in conversation that, taken out of context, can prove anything.
The moral is clear: If you type it and send it, prepare to explain it in public later.
And voice is no longer a refuge. Face-to-face conversations are still safe, but we know that the National Security Agency is monitoring everyone’s international phone calls. (They said nothing about SMS messages, but one can assume they were monitoring those too.) Routine recording of phone conversations is still rare—certainly the NSA has the capability—but will become more common as telephone calls continue migrating to the IP network.
If you find this disturbing, you should. Fewer conversations are ephemeral, and we’re losing control over the data. We trust our ISPs, employers and cellphone companies with our privacy, but again and again they’ve proven they can’t be trusted. Identity thieves routinely gain access to these repositories of our information. Paris Hilton and other celebrities have been the victims of hackers breaking into their cellphone providers’ networks. Google reads our Gmail and inserts context-dependent ads.
Even worse, normal constitutional protections don’t apply to much of this. The police need a court-issued warrant to search our papers or eavesdrop on our communications, but can simply issue a subpoena—or ask nicely or threateningly—for data of ours that is held by a third party, including stored copies of our communications.
The Justice Department wants to make this problem even worse, by forcing ISPs and others to save our communications—just in case we’re someday the target of an investigation. This is not only bad privacy and security, it’s a blow to our liberty as well. A world without ephemeral conversation is a world without freedom.
We can’t turn back technology; electronic communications are here to stay. But as technology makes our conversations less ephemeral, we need laws to step in and safeguard our privacy. We need a comprehensive data privacy law, protecting our data and communications regardless of where it is stored or how it is processed. We need laws forcing companies to keep it private and to delete it as soon as it is no longer needed.
And we need to remember, whenever we type and send, we’re being watched.
Foley is an anomaly. Most of us do not send instant messages in order to solicit sex with minors. Law enforcement might have a legitimate need to access Foley’s IMs, e-mails and cellphone calling logs, but that’s why there are warrants supported by probable cause—they help ensure that investigations are properly focused on suspected pedophiles, terrorists and other criminals. We saw this in the recent UK terrorist arrests; focused investigations on suspected terrorists foiled the plot, not broad surveillance of everyone without probable cause.
Without legal privacy protections, the world becomes one giant airport security area, where the slightest joke—or comment made years before—lands you in hot water. The world becomes one giant market-research study, where we are all life-long subjects. The world becomes a police state, where we all are assumed to be Foleys and terrorists in the eyes of the government.
This essay originally appeared on Forbes.com.
Posted on October 18, 2006 at 3:30 PM •