Creating a Backboneless Internet?

Peter Trepan asks: "The Internet is the best thing to happen to the free exchange of ideas since... well... maybe ever. But it can also be used as a tool for media control and universal surveillance, perhaps turning that benefit into a liability. Imagine, for instance, if Senator McCarthy had been able to steam open every letter in the United States. In the age of ubiquitous e-mail and filtering software, budding McCarthys are able and willing to do so. I Am Not A Network Professional, but it seems like all this potential for abuse depends upon bottlenecks at the level of ISPs and backbone providers. Is it possible to create an internet that relies instead on peer-to-peer connectivity? How would the hardware work? How would the information be passed? What would be the incentive for average people to buy into it if it meant they'd have to host someone else's packets on their hard drive? In short, what would have to be done to ensure that at least one internet remains completely free, anonymous, and democratized?"

Comments

I do not believe it is legal

[einhverfr]

IANAL....

Anyway we have a fair bit of case law on this subject that I am aware of. We know that wiretaps are generally held to the same standard as any other search and siezure Constitutionally. That is that it must be "reasonable." And this generally means that it requires a warrant.

Of course, there are circumstances where this may not be the case, but we have the FISA act which requires that search warrants be applied for within 72 hours of initiating surveillance. In other words, if it is a real emergency, you can fill out a few extra forms and get your search warrant retroactively.

The Government's case for the legality fails on a number of grounds. THe first is that the Commander in Chief does not have unilateral authority to decide what searches and siezures are reasonable especially in a state of conflict which by all indications will be perpetual. The idea that war powers are not a blank check was echoed in Hamdi v. Rumsfeld, Rasul v. Rumsfeld, and other recent cases. So this one falls flat.

The second justification that the AG uses is that this is reasonable even in the absence of a warrant. In this case, the analogy is made to searches in airports that are generally considered reasonable even in the absense of a warrant. I don't believe that this analogy holds, for to suggest that one can place on public communications media a mechanical system for monitoring certain voice patterns and words would seem to me to be both a potential conflict with the 4th Amendment but also and as importantly with the First. Why should my call be recorded just because I say something about Jihadists? What about the chilling effect?

Similarly the search is unreasonable because it is an automated search of a large area which deeply intrudes on calls where there is a legitimate expectation of privacy. If my wife goes back to Indonesia and I am on the phone with her discussing our marriage, why should the government have a right to analyze that traffic?

Third, the AG asserts that the AUMF of 2001 provides the president to use military force against any he deems necessary as part of the war on terror. If this is to be deemed a blank check to engage in widespread military surveillance (or other activity such as military assassinations/summary executions) on US citizens without standard Constitutional safeguards, then our country is on the road to dictatorship regardless of what one personally thinks about Bush. Even if one supports Bush, one cannot guarantee that our nation will always have wise and just rulers. I wonder what the GWB supporters would say if someone they didn't like ended up with the same powers.