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Founding Fathers under attack from the Internet

Technology doesn't just change our lives; it consequently changes what the government considers to be a reasonable invasion of our privacy.

Consider the history of phone taps—a technology that once seemed like a terrible, unconstitutional violation, which has now become accepted as the norm by many. If computing continues to expand at the rate it has, leading to more illicit markets located on the "dark Web" and other untraceable websites (think Silk Road), it's only a matter of time before we should expect the government to watch our Internet activity as easily as they utilize phone taps.

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This reality is inevitable and could transpire through a new interpretation of the Fourth Amendment to the U.S. Constitution, which in part covers unreasonable searches and seizures of the property of private citizens.

As a law-abiding citizen, I am in favor of the government being able to stop criminal activity that is taking place, thanks to technological advances, but once we start down that road, it won't be long before a new "reasonableness" standard will be cited in every legal case brought by the government, and that will most likely have unintended consequences.

But first, a little history of the Internet is helpful.

When the Internet first emerged, we truly had a decentralized network of computers that were able to communicate with one another independently, primarily used by academics and government agencies. As the network evolved, it became apparent that the communication protocols were no longer sufficient to accommodate the vast flood of devices. The TCP/IP protocol began to be used as a method of providing each individual device on the Internet with its own unique address.

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Today, the Internet is capable of connecting a vast number of devices. The most commonly used iteration of the IP protocol (IPv4) provided for a total of 232 devices (just about 4.3 billion devices) to be connected to the Internet at one time. But that wasn't enough—it later became clear an IP for 2128 devices was required, providing for enough IP addresses for every atom on the surface of the Earth to have around 100 unique addresses.

"With the growth of powerful, centralized services (the big tech companies) came the fear from Internet users that their once-secretive world of the Internet was no longer secret at all. The anonymity that they once sat behind was essentially gone as a carefully placed subpoena to one of a few companies will likely identify them based on their Web traffic."

The new Internet user wasn't going to remember a long numerical address when connecting to another node on the network. A translation service was needed to ensure that IP addresses could be translated into human-readable names. That resulted in the birth of the Dynamic Naming Service, or DNS. DNS is comprised of hundreds of severs around the world, managed by a variety of organizations, ensuring that there is no single point of failure that could bring down DNS and, in essence, the Internet.

And here is where the constitutional issue arises: One of the paramount features of a decentralized network is that since there is no central organization controlling the machines that contain the data running through the network, there is essentially no one who is able to accept a subpoena for the data in question or take action from the receipt of an injunction. This is a great benefit, which is touted by advocates for free speech worldwide. It's also a potential problem for the government and law enforcement.

In centralized organizations, such as Google, Apple, or Yahoo, servers are administered by a single organization with the ability to act on judicial orders. The ability to utilize the courts in governmental proceedings has already resulted in a certain interpretation of the Fourth Amendment. Since law enforcement has a responsible party with which to interact when centralized services are used, there has been no need to view U.S.-based Internet service companies in a different light than their brick-and-mortar competitors, where government searches and seizures are concerned.

With the growth of powerful, centralized services (the big tech companies) came the fear from Internet users that their once-secretive world of the Internet was no longer secret at all. The anonymity that they once sat behind was essentially gone as a carefully placed subpoena to one of a few companies will likely identify them based on their Web traffic. This spurred the demand for greater anonymity online through the use of encryption tools and decentralized networks.

Founding Fathers in the dark

This is where the battle between the Founding Fathers and the Internet is headed, because there are pros and cons to enhanced anonymity and decentralization.

When you combine the benefits of a decentralized network with popular and relatively easy-to-use anonymity tools such as TOR or I2P, an otherwise unknown scenario is created in countries around the world that have government censorship issues—people who were previously denied the ability to speak and hear the truth are now able to do so right from their home computer—and their government has no easy way of tracking of them and preventing them from interacting freely with the world.

On the other hand, nefarious actors use the same technologies to get around law-enforcement capabilities and engage in overtly illicit activities—beyond simple free speech. The most well-known example relates to bitcoin.

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Bitcoin operates under a decentralized computing scheme where the payment processors (miners) are located all around the world and contributing their processing power to the network, while the actual bitcoin nodes (which contain copies of the block chain) are also decentralized. In a scenario where law enforcement seeks data beyond the tokenized data on the block chain, there currently aren't any options for them to rely on, which is why many people currently associate bitcoin with illegal Internet activities.

While bitcoin is becoming a more legitimate means of value transfer, it cannot be denied that there are many services that are illegal in nature operating on the Dark Web that only accept bitcoin as a form of payment, specifically because it is an anonymous payment method that protects both the site operator and the consumer from identification.

With the rise of online privacy advocacy, especially since Edward Snowden released information on NSA programs, including PRISM, there has been a growth in the number of people utilizing anonymous means to transact on the Internet—whether it's through the use of TOR, bitcoin, or through other technologies. For the most part, the use of bitcoin and the other anonymity tools mentioned above give people a feeling of security—that they can live their life without the fear of unnecessary government intrusion. If this trend continues, it is likely that we will see a significant shift in how law enforcement seeks out the data it requires to manage its cases.

It should come as no surprise if two different interpretations of the "reasonableness" standard of the Fourth Amendment emerge—one for services that are centralized and have identifiable owners and operators (the big consumer companies), and another for decentralized and anonymous services. While it might be "reasonable" to serve a subpoena on Facebook, it is not "reasonable" to serve one on an anonymous and hidden marketplace, such as Silk Road.

The new interpretation will result in the government's ability to utilize tactics currently deemed unconstitutional—because those will be the only "reasonable" methods available to ensure that our laws are enforced and that crimes in which we have the ability to stop are not committed

In the content of a current case, it is possible that this line of reasoning will be used by the U.S. government as it continues arguments in January against Ross Ulbricht (United States of America vs. Ross Ulbricht)—allegedly the Dread Pirate Roberts who built and operated the Silk Road marketplace. The defense in this case has consistently argued that there is no way that the FBI could have discovered the defendant through any legal means—an unacceptable loophole if proved accurate.

Whether you believe that the government has the right to use any "reasonable" means to ensure that we remain safe and secure, or you believe that individuals should be able to make their own decisions online and don't need the government to watch over them, a change is inevitably going to come and it will level the playing field in a way that our law-enforcement community has been hoping for. But the unintended consequences that come with this change can't yet be known.

By Brian Koffler, president of Koffler Legal and Consulting Services

Through his firm, Koffler Legal and Consulting Services, Brian Koffler has conducted training for various law-enforcement agencies and speaks at bitcoin conferences nationwide. He holds a master's in information systems from Harvard University, a Juris Doctorate from New York Law School.

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