Published by LawTechie - April 30, 2013 - LawTechie

Intellectual PropertyOn top of the troubling developments in re the proposed Cyber Intelligence Sharing and Protection Act (CISPA), the government seems to want to further knock down tech barriers to eavesdropping wiretapping by fining tech companies who fail to abide by wiretap orders.

According to the Washington Post:

There is currently no way to wiretap some of these communications methods easily, and companies effectively have been able to avoid complying with court orders. While the companies argue that they have no means to facilitate the wiretap, the government, in turn, has no desire to enter into what could be a drawn-out contempt proceeding.

Under the draft proposal, a court could levy a series of escalating fines, starting at tens of thousands of dollars, on firms that fail to comply with wiretap orders, according to persons who spoke on the condition of anonymity to discuss internal deliberations. A company that does not comply with an order within a certain period would face an automatic judicial inquiry, which could lead to fines. After 90 days, fines that remain unpaid would double daily.

This new development is likely in direct response to the fact that Apple’s iMessage encryption has made it impossible to intercept communications even where the government agency has a valid warrant. Thus it seems that the FBI has decided to fine tech companies into submission (e.g., pay hefty fines or alter your technology to make it less privacy-protective).

If seems to me that our law enforcement agencies have become exceedingly over-reliant on eavesdropping versus traditional detective work. Allow me to wax quixotic on a matter of criminal law (a topic in which I, admittedly, have no particular experience), but it seemed to me, even long ago in law school, that “probable cause” was an altogether too low a standard to allow government agents to listen in on private communications. Our society’s privacy values have become quite loose if we are okay with having a living, breathing human being, who we have never met, listen in on our private conversations just because a judge somewhere thinks we are probably committing a crime (just my personal opinion).

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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