When Tubes Cross Borders

Given my limited grasp of how exactly the little tubes of the internet work, it seems prudent to defer to others who know more when it comes to what can and can’t be done.  It’s a lesson David Post at  Volokh Conspiracy should heed as well, as his well-deserved smack at Richard Clarke, former United States Cyber-Security Czar, would have stayed on point. 

David slammed Clarke’s  New York Times op-ed, wherein Clarke railed at the failure of our government to address

“continuing, rampant cybertheft,” which amounts to  “the greatest transfer of wealth in history.”

Wow. Who knew?  Clarke’s solution:
Because it is fearful that government monitoring would be seen as a cover for illegal snooping and a violation of citizens’ privacy, the Obama administration has not even attempted to develop a proposal for spotting and stopping vast industrial espionage. . . . But by failing to act, Washington is effectively fulfilling China’s research requirements while helping to put Americans out of work. Mr. Obama must confront the cyberthreat, and he does not even need any new authority from Congress to do so.  Under Customs authority, the Department of Homeland Security could inspect what enters and exits the United States in cyberspace.
(Emphasis added)

And this is where David flipped out.  The problem is that his attack included an understanding of how the interwebz work that techgeeks ripped to shreds.  David wrote:

It doesn’t work like that — does Clarke really not get it?  There’s a single global network that has a (virtually) infinite number of entry points.  There are no ships coming into the harbor that you can board and inspect.  There’s no place where you can station your border guards to check stuff coming “in to the United States” or moving “out of the United States.”  Oh — and we actually like it that way; that’s one of the very important things that makes the Net such an astonishing place.  You want to open up and inspect every packet that lands on the desktop of anyone located within US borders?  Is that what you’ve got in mind?  If that’s your proposal (and I can’t for the life of me imagine what else you might have in mind to accomplish this bizarre and absurd task) — No, thank you.

As it turns out, maybe it does work that way, according to VC commenter Sean Flaim,  at least somewhat.

It’s not true there is an “infinite” number of entry points.  The backbone has a limited number of discrete entry and exit points from the U.S. going to foreign countries, along major underwater telecommunications cable lines.  You can find a good map of Level 3’s cable’s here:   http://maps.level3.com/default…  Other major backbone providers use the same cable launch points.  Is that all of the ways in and out of the U.S.?  No.  There is also satellite, and the capability of routing through cross-border lines to Mexico or Canada and then overseas.  But these choke points handle about 98% of all traffic or greater.

Is this true? Beats me, and if you happen to think yourself particularly knowledgeable on the subject, keep it to yourself. It’s irrelevant. Even if the task of border searching every packet that flies in and out of this country through the little tubes of the internet can be done without breaking a sweat, so what? If it can’t be done today, it will be doable tomorrow. Technology is amazing stuff, but it fails to address the analogy to border searches provides the government with the authority to search data as it crosses from here to there.

Clarke’s argument falls very much in line with the arguments used by courts in every 4th Amendment case involving tech, that we can discern the law to be applied to the digital world by cute analogies to the physical world.  Recall the many discussions of whether decrypting a computer is more like a file cabinet with a key or a combination lock? Or perhaps the third party doctrine for searching emails, given that every email resides on some third-party’s server somewhere, whether anyone realizes it or not?

The impetus for Clarke’s “sky is falling” scenario is that our country, in the throes of continued unemployment and economic stagnation, is being ripped off by Chinese hackers, who are stealing our very expensive brilliance and using it to reap the rewards that should rightfully be ours.  He offers almost no support for the proposition, but it’s not hard to imagine that it can happen if it doesn’t already. 

Of course, it starts this way, with something benign like protecting American IP and technology, something we can all generally agree is a good thing for us. We want a more robust economy. We want to lower unemployment. We want the good old days when we were living large.  And those nasty hackers are stealing it from us. Damn them.

Yet once the government gets its sticky fingers around every packet flowing in and out, it’s going to include not only the stuff done by back Chinese hackers, but by the rest of us as well.  If they can search every packet of information, then my packets and yours are included.  And suddenly, the world wide web becomes a fabulous source of information for the government. It gives new meaning to search engine. And as even internal emails run through servers located elsewhere, it could cover a lot more than just hack attacks from Fuchan Province.

Sure, there’s always encryption, which could serve as an after the fact means of stymiing the government’s efforts, but that shifts the burden back to us while giving the government free rein. Plus, if you think the government is going to take encryption lying down, you aren’t familiar with American history.

Where Clarke’s enjoyment of facile analogy (and similarly, the courts and the academics who similarly embrace analogy to further a simplistic and usually facile application of old doctrine to new technology) goes astray is that the concept of border searches was based on the rationale of stopping the flow of untaxed or harmful goods into the country. It was never meant as means of generalized search, a free ride for the government to peak under our clothes, into our minds and over our rights.

A common theme is that the law, over time, remembers the rubric and forgets the rationale. This has never been as true as when the government seeks to apply physical world doctrine to digital world applications. It’s bad now, and as we can see from Clarke’s attempt to abuse it, it’s only going to get worse.

Analogies are fun to play with, and often an enjoyable game for parties and classrooms. They are not, however, a basis for the forfeiture of rights or a substitute for adequate grasp and thought.  There are certain bottom line questions, such as whether we believe that the government should have free access to every email we send. Forget the analogies to arcane physical world doctrine. Forget whether they have the capacity. Consider whether we really want the government to be able to do it. That’s the question that needs to be answered, regardless of what tube our lives flow through. 

4 comments on “When Tubes Cross Borders

  1. Alice harris

    If one thinks of postings on the web as notes, letters, posters, that is, as speech, it’s pretty easy to decide the government’s role & limits.

  2. SHG

    I think you’re confusing free speech with search and seizure. While writing emails is the same as writing with a quill pen on parchment as far as the concept to expression is concerned, the issue here isn’t censorship but intrusion into what most of us perceive as private communications.

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