Big Brother and technology

Prof. Lawrence Lessig is one of the smartest people I know of, and he has a gift for explaining complicated legal issues in a way that most people can understand. He’s also responsible for some of the best presentations I’ve ever seen (online).

Recently he talked with Bill Moyers about how technology can be used to not only seek out and help catch the bad guys but also protect us at the same time. Yes, the show’s an hour long, and it’s hard in our busy lives to find an hour to spend watching something like this. We need to do it, however. We can’t afford to let our democracy wither away because policy debates are reduced to three-second sound bites.

(Sorry, I can’t seem to figure out how to embed the video here.)

Lawyering in the age of NSA spying

The news about the National Security Agency’s wholesale gathering of Internet and phone data is getting to be old news. The issues this news create, however, are not. Indeed, over the weekend, I began wondering about what duties we lawyers have that might be affected by the NSA’s data collection.

We all know that we have a duty to maintain client confidences. Rule 1.6 makes that abundantly clear, and even in the absence of the Rule clients expect confidentiality. It is widely understood that email is not a secure means of communication with clients, and some jurisdictions might require attorneys to advise clients of this fact. Apart from encrypting email, there’s not much that can be done to make email more secure.

But what about other Internet traffic that we generate? For example, could the NSA or some private actor be sniffing at your Internet traffic to see what web sites you’re visiting? Could those web sites give a clue to someone about the matters you’re working on? If you’re a business lawyer with a client that sells pizza restaurant franchises, imagine what a competitor might conclude if its snooping reveals you’re suddenly accessing web sites related to a new territory—like the state’s secretary of state. Your client’s secret plan to expand into a new state might not be so secret any longer.

Let’s not even start to contemplate all the web traffic associated with lawyers using online practice management services like Clio.

Before you begin to get too paranoid (or you conclude that I am), let’s keep in mind that the amount of traffic on the Internet is enormous. There is a practical obscurity that provides a level of security. Singling out your Internet traffic on behalf of a client is like looking for the proverbial needle in a large field of haystacks.

That being said, we lawyers are under a duty to take reasonable precautions or steps to ensure client confidentiality is preserved. We’re required to instruct our staff about this duty. We make sure that any online tools we use have sufficient encryption and security policies. Perhaps we should take one reasonable step with regard to our own Internet traffic. What would that step be?

Introducing virtual private networks

Virtual private networks, or VPNs, are nothing new. Their ease of use, however, has improved greatly. A VPN basically creates an encrypted tunnel on the Internet through which all of your traffic travels. This makes it a whole lot harder for an outsider (like the NSA, the Chinese government, or your neighborhood hacker) to see what your traffic looks like. A VPN can also confuse snoops, making them think your computer is actually in another city, state, or even country.

I won’t go into more details here, but Lifehacker.com has an excellent article that covers the details and more. I commend it to you for your consideration.

Having thought about it for a while over the weekend, I decided that a VPN was a good idea. The cost is very reasonable, and I know that my home and work computers no longer generate traffic that is easily monitored. I’ve been able to easily use the VPN on my iPad and iPhone as well. Now I have one less thing to worry about.

Dear President Obama: Stop spying on us

News reports are circulating this morning that the National Security Agency obtained a top secret court order requiring Verizon wireless to turn over millions of customer records on an ongoing, daily basis.

Al Gore called this “obscenely outrageous,” but I don’t think Mr. Gore went far enough. This is beyond obscenely outrageous.

First of all, the Fourth Amendment of our Constitution—the same Constitution that every office holder is sworn to uphold—says that we have the right to be free from unreasonable searches. Search warrants can issue only on a showing of probable cause. That’s the supreme law of the land (although apparently some NSA and FISA court judges have forgotten this). The law requires that the government focus its surveillance on individuals who are under suspicion. Not on every customer of a wireless provider.

Second, obtaining large swaths of data does not help fight the “bad guys.” When there’s more data going into the review system, it’s like making the haystack with the needle into a bigger haystack. It becomes harder to find the proverbial needle. Wholesale monitoring of phone records is not going to make us any safer. It only increases the risk that something noteworthy will escape notice. If you have a weather alert radio in a room full of televisions and radios that are all turned on and making noise, the weather alert is less likely to be noticed.

Third, monitoring citizens is morally wrong. Even those who claim they have nothing to hide misunderstand the problem. When people believe they are being monitored by the authorities, they modify their behavior so as not to attract attention. It’s human nature. In fact, you probably engage in this modification without even realizing it: When you’re on the highway and you see a police car, what’s the first thing you do? That’s right, you check your speedometer—even if you know you’re not over the speed limit. You aren’t doing anything wrong, yet you still don’t want to attract the attention of the officer and risk getting a ticket.

What frustrates me is that I feel powerless. I can blog about my outrage, contact my representatives in Congress to express my outrage, even write to President Obama. But I have no confidence that it will make a darn bit of difference, no matter how many of us do it. What saddens me is that so many of my fellow Americans will just shrug their shoulders and go on. When that happens, we’ve let Big Brother take control. We just don’t realize it yet.