Privacy/Lessig: There’s no difference between the police reading yourmail, and the police’s computer reading your e-mail. In both cases, a legitimate and reasonable expectation of privacy has been breached. In both cases, the law should protect against that breach.
On the other hand, friends of security insist there is a fundamental difference. As Judge Richard Posner wrote in the Washington Post, in an article defending the Bush Administration’s (extensive (1)) surveillance of domestic communications, “[m]achine collection and processing of data cannot, as such, invade privacy.” Why? Because it is a machine that is processing the data.Machines don’t gossip. They don’t care about your affair with your coworker. They don’t punish you for your political opinions. They’re just logic
machines that act based upon conditions. Indeed, as Judge Posner argues, “[t]his initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.” We’re better off having machines read our e-mail, Posner suggests, both because of the security gain, and because the alternative snoop—an intelligence officer—would be much more nosey.
1. We’ve learned that the Defense Department is deeply involved in domestic intelligence
(intelligence concerning threats to national security that unfold on U.S. soil). The department’s
National Security Agency has been conducting, outside the framework of the Foreign Intelligence
Surveillance Act, electronic surveillance of U.S. citizens within the United States. Other
Pentagon agencies, notably the one known as Counterintelligence Field Activity (CIFA), have,
as described inWalter Pincus’s recent articles in theWashington Post, been conducting domestic
intelligence on a large scale. Although the CIFA’s formal mission is to prevent attacks on military
installations in the United States, the scale of its activities suggests a broader concern with
domestic security. Other Pentagon agencies have gotten into the domestic intelligence act,
such as the Information Dominance Center, which developed the Able Danger data-mining
program. _____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Code: Version 2.0 New York 2006ff