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FBI/Apple privacy fight left out a major player: the data carriers

Taylor Armerding | June 30, 2016
In the conflict between government surveillance and individual privacy, it is not just the data on devices that is at stake. It is the data that travels to and from the devices. That is where the communications carriers come in

"Government has asserted that it doesn't look at anything before the filter. But we don't really know who owns the filter or who does the handoff," she said.

"The question is one of technology. Does it allow the government to have access to the full stream of data before the filter? If so, there is a risk of abuse, or attempts to use the filter for a political purpose."

But the implications go well beyond technology, of course. "Post-Snowden, these companies no longer have confidence in government," Eoyang said. "They need to know that government is coming through the front door with an appropriate ticket, and not breaking in through the back door."

Not everybody sees it that way, of course. While there is general agreement that limiting government access to the private data of U.S. citizens is a good thing, Eoyang's proposed amendment still gets mixed reviews.

Eric Berg, an attorney at Foley & Lardner and a former Department of Justice attorney, said he doubted service providers want to be responsible for the filtering of data.

Not only does it depart from their core business, but it could also expose them to reputational damage or legal liability.

"While the idea of keeping the government one step removed from the data may have emotional appeal, the potential liabilities involved would be numerous and very likely unknowable," he said.

While the idea of keeping the government one step removed from the data may have emotional appeal, the potential liabilities involved would be numerous and very likely unknowable. 

And in another Hoover Institution essay, also presented on the Lawfare blog, U.S. Naval Academy cyber studies professor and former NSA deputy director Chris Inglis, and Jeff Kosseff, assistant professor of cybersecurity law at the academy, argue that allegations that the NSA, "exceeded either the intent or the letter of its authorities" are nothing more than "widely circulated myths."

They contend that Section 702 authorizes the collection of only, "foreign intelligence from non-U.S. persons who are not located in the United States, (is) overseen by all three branches of government and has an unprecedented system of checks and balances."

And they wrote that according to the NSA, "Section 702 is its single most significant tool for identifying terrorist threats."

Inglis, in an email interview, said that government, "can, and does, target the content of the communications of a legitimate foreign intelligence target, though the manner, location and techniques employed are constrained by various legislative, judicial, and executive branch statutes, orders and policies."

He said since those communications are often "wrapped" in various Internet protocols or encryption schemes, the NSA is authorized to "unwrap" them, "to generate intelligence on legitimate foreign intelligence targets - generally characterized as 'breaking codes.'"

 

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