"We're just as concerned about protecting the Fourth Amendment as anyone else," FBI spokesman Barry Smith recently told The New York Times.
This is the sort of declaration that has an effect exactly the opposite of the one intended, since it would not be necessary if it were true. Amid the FBI's persistent demands that Americans sacrifice their privacy to make its job easier, the bureau's concern for the Fourth Amendment is hard to discern.
The context of Smith's assurance was the FBI's proposal to use mobile telephones as homing devices, taking advantage of a triangulation technique developed for 911 emergency services. The technique–which works when a phone is on, whether or not it's in use–can locate a person within an area the size of a football field.
The FBI is seeking permission from Congress to track the positions of mobile phone users without a court order. Officially, that power could be used only in an "emergency."
But since the bureau defines "emergency" to include any situation involving suspicion of a felony, pursuit of a fugitive, or a possible threat to human life, it seems to be a euphemism for "any time we feel like it." How many FBI cases don't involve suspicion of a felony?
"This is very close to a dragnet search," University of Chicago law professor Richard Epstein told the Times, "and I'm not clear you should be able to do this even with a warrant."
The FBI is similarly cavalier when it comes to regular telephones. In response to technological changes that made old-fashioned wiretapping obsolete, the bureau lobbied for the 1994 Communications Assistance for Law Enforcement Act.
CALEA requires phone companies to make sure the feds continue to enjoy the surveillance prerogatives to which they have become accustomed. Those include the ability to obtain lists of incoming and outgoing calls without the court order that would be needed to hear the content of conversations.
But the new digital networks mix both kinds of data together in the same "packets," and phone companies plan to turn everything over to the government, relying on the FBI to ignore the data it's not supposed to have. Thus, under the guise of maintaining the staus quo, the bureau has actually extended its ability to engage in unsupervised snooping.
From the FBI's perspective, computer encryption represents an even bigger threat than mobile phones and digital telecommunications. If a message is in a code that can be translated only by the receiver, intercepting it will do the bureau no good.
For this reason, the FBI insists that exports of computer programs with strong encryption should be allowed only if the government can obtain the keys to the code. One proposal is to entrust the keys to a third party that would surrender them in response to a court order. The FBI also wants to establish such a system for domestic encryption, which is currently unrestricted.
As Smith, the bureau spokesman, told The Dallas Morning News, "We are very much concerned about the use of commercially available, encrypted products that threaten public safety when used by criminals and terrorists." In a letter to The New York Times, FBI Director Louis Freeh says the fact that Americans can transmit confidential information without fear "represents a serious public safety concern."
In other words, strong encryption threatens public safety because it helps criminals. This sort of reasoning–which is also central to the gun control debate–obscures the fact that any technology can be used for bad purposes.
More generally, the FBI's demands for mobile phones that rat on their users, snoop-friendly telecommunications networks, and vulnerable encryption reflect a belief that the world should be arranged to facilitate law enforcement. By the same principle, the bureau could insist that we stop using window blinds and door locks, keep our lights turned on, and speak loudly all the time.
The justification for the FBI's nosiness, of course, is its mission to fight the bad guys. "It is the ability to collect electronic evidence," writes Freeh, "that has allowed us to prevent airliners from being bombed and to put major drug dealers behind bars."
While the relative importance of such evidence is open to debate, it's certainly true that secure communications technology makes life harder for law enforcement agencies. But then, so does the Fourth Amendment.