Scribe’s Notes

March 11, 2002

 

Announcements

       See Prof. Zittrain if you want to talk about your paper topic live.

 

 

Privacy Continued

 

-        Last week – Commercial Surveillance (Slide):

o    Summary of difference between 2nd and 3rd party surveillance. (Where the data comes from.)

o     What happens to the data.

o     Remedies

§      Tort is a remedy (Not yet mentioned)

§      Tech remedies (trusted systems)

 

-        Government Surveillance

o    The 4th Amendment constrains government actors.

o    Debates about encryption are fundamental to this discussion.

§      Traditional “Donut Truck” way of doing surveillance had many constraints (limited number of trucks, only do it for the very, very bad, etc.)

§      The fear of government investigators is that their spying will be defeated by various forms of encryption.

§      See “Encryption in 3 easy steps” slide

·       Keys,

·      One-way mathematical fxns that block the ability to determine the message without private key (in any reasonable amount of time),

·      Publicize the public key.

·      This is a way for people who do not know each other to exchange information securely…

·      …AND it’s good for authentication – gives you a digital signature.

o    This works by flipping public and private key.

o    Each signature is specific to the data to be signed (private key creates “junk” and then only the public key deciphers it).

·      Can erase key to encryption

o    An issue in Discovery

o    Allows destruction of data immediately

·      “Web of Trust” is another possible system.

o    Validated by personal contact or authoritative list maintained, e.g. by Verisign.

·      Could use authentication to fight Spam.

§      So… government hates encryption

·      Want to slow it down. Options:

o    Ban it – too extreme (want to keep the authentication fxn that comes with because it makes money)

o    Export controls – no sending good stuff overseas.

§      Compromise between law enforcement and national security

§      Annoying to implement

o    “The Clipper Chip” – adding a skeleton key

§      escrowed somewhere safe – civil libertarians would guard

§      BUT government would have access to it with warrants

§      Problem if you forget your key (weirdos would lock their property without some back-up)

·      What do we think about this? Why not just let the 4th Amend. Protect?

o    Room split between unbreakable encryption and just trust the law.

o    MIT people seem to prefer encryption

o    Law students trust the law

Discussion:

o    We trust the IRS even though we hate it.

o    What do we do about Hackability?

o    Fear government or criminals?

§      Key Escrow is actually dead – Clinton administration couldn’t rally support for it.

 

o    How do we feel about a Net-wide Search?

Not okay with it    

§      It’s not okay because on the boarders, as government gets used to rely on this tool, they will use it for non-contraband. (The Hoover fear).

§      Problem of who decides what is fair to search for. “People are untrustworthy”

·      Person with unsavory/embarrassing but not illegal data is potentially hurt.  (senator with porn example).

§      Chilling effect on the things that are legal

·      Rebuttal: how do you feel about the squealing computer (that would volunteer illegal content)?

§      In war time and in times of less prosperity we feel differently – if you were a communist, in another era you would have had a big problem. We can’t assume that we will never have this kind of situation again. Prevent the government from having that tool now.

Okay with it

§      Very focused search for contraband okay

§      Why would there be a privacy right in things which are illegal to own?

·      Rebuttal: This would apply to all evidence excluded in trials – this is the 4th and 5th Amend. protection in current jurisprudence.

o    What standard applies?

§      Adler article

·      Note: doctrine wrong, not a balancing test.

 

§      Reasonable expectation of privacy is actual standard. What does that mean on the Net?!

§      Kyllo case (533 US 27)– thermal imaging technology used to discover marijuana in a house.

·      Holding: using tech not “in general public use” to gain information violates “reasonable expectation of privacy” therefore it was an illegal search.

o    New technology/factors

§      Tempest

§      Magic Lantern – “cruddy Trojan horse program” to get passwords.

§      Carnivore

§      Databases – supply creates demand (once you have a database for a reasonable purpose – too tempting to use it for law enforcement purposes).

o    Architectural battles

o    Intrusions become less offensive over time – so in order to halt their progression, need principles that can be articulated.