Beyond Snowden by Timothy H. Edgar

Author:Timothy H. Edgar
Language: eng
Format: epub
Publisher: Brookings Institution Press

IF WORD GAMES ARE MY specialty, Anna is usually more interested in math. When it comes to privacy, my marriage is a special case of “West Coast Code” meets “East Coast Code.” The idea, popularized by Larry Lessig, is that technology can define the rules that guide our lives as much as—and sometimes more than—law. East Coast Code is law—the U.S. Code and other regulations and rules made in Washington, D.C. West Coast Code is computer code—the software, protocols, and standards most famously written in Silicon Valley.13

The East Coast Code idea of privacy originates in a paper by Louis Brandeis and his law partner, Samuel Warren, published in the Harvard Law Review in 1890. In “The Right to Privacy,” Warren and Brandeis argue that invasions of privacy require a legal remedy, just as the law provides a remedy for physical harms. When Brandeis later became a Supreme Court justice, he continued to champion privacy in other contexts, including in the context of what was then a new form of surveillance, wiretapping. In Olmstead v. United States, the Supreme Court’s majority found the government needed no search warrant to engage in wiretapping of a telephone line on a public street, focusing on the fact that there was no physical intrusion into the suspect’s home, only an intangible invasion of his privacy. In one of his famous dissents, Brandeis protested that wiretapping was no less a search for being intangible. He wrote that “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” In 1967 the Supreme Court repudiated the narrow approach to surveillance it had taken in Olmstead, vindicating Brandeis’s dissent.14

Eloquence aside, there is a wiggle word in Brandeis’s definition of privacy. It is only unjustifiable intrusions that violate the Fourth Amendment. Lawyers like wiggle words. It gives them power because lawyers and judges are the ones that say what the words mean. Intelligence officials often look to their lawyers to figure out creative ways they can get the data they need—or think they need—without violating the rules. When the Justice Department was seeking to justify the NSA’s bulk collection of telephone records under the Patriot Act, its lawyers praised the FISA court’s opinions approving bulk collection of internet metadata as “ground breaking and innovative.”15 As we have seen, that program of domestic bulk collection turned out not to have been particularly valuable. When lawyers think in innovative ways, the results can be bad for privacy.

The West Coast Code idea of privacy offers no wiggle room. It is perhaps best captured in a paper written by three computer scientists at the Massachusetts Institute of Technology, Ron Rivest, Adi Shamir, and Len Adelman. The paper outlines the first practical system of public key cryptography, the “RSA algorithm,” its name incorporating the initials of its inventors. Public key cryptography solves the problem of how to encrypt communications without the need to agree on a key ahead of time.

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