Mr. Chairman
and Members of the Committee, I appear today on behalf of the National
Association of Criminal Defense Lawyers (NACDL). I thank you for
inviting us to participate in this hearing.
Leap years
like this one occur only once every four hundred years. Opportunities
for social, economic and political renaissance on the scale the
Internet affords us do not happen as often. There is no blueprint for
the wise use of our newly wired world.
We should
proceed with caution in how we shape the future of the Internet.
Internet technology has become the lifeblood of commerce and a
catalyst for global change. If we know anything about the profound
change that is underway all around us, it is that we still do not know
where it is taking us.
We should be
careful and deliberate before acting with familiar political reflexes,
trained over the years to deal with very different legal and social
scenarios than the Internet presents to us today. We should do this
not because there are no decisions about the Internet that need to be
made, but rather because we don't have enough perspective of the
changes that are upon us to foresee what unintended consequences these
decisions will bring.
Our margin
for error is very narrow. If we overshoot the proper reach of
government monitoring and intrusion in a digital world and sanction
law enforcement to co-opt these advancing technological capabilities,
our society may fall victim to a perhaps well intended but
relentlessly totalitarian surveillance apparatus, whose control over
the people would boundlessly surpass the people's ability to control
it.
On the other
hand, if we underestimate the potential threat to personal privacy,
property, commerce and free speech inherent in the criminal
exploitation of Internet technology, we will find ourselves at the
total mercy of those who are both ruthless and technologically adept,
no matter where on this planet they reside.
Having pulled
this genie from its bottle, it would be wise for us to reflect more
carefully on our choices before we wish the wrong future upon
ourselves. Without the best possible understanding of the social,
economic, and constitutional consequences of advances in
communications and computing, our criminal law could easily lose its
good sense in so much great technology.
How do we
anticipate and prepare for the long-range consequences of the
policies, legislation and legal precedents new technology will demand
of us?
Governing the State of Technological Change
The Digital
Age is just beginning. For all that has been written and said about
the potential of the Internet, the story has barely begun to be told.
For all the changes that the Internet has brought about, we have
barely begun to experience the changes it will bring. Only when we
appreciate the rate of transformation underway in our society can we
appreciate that the only constant in our lifetimes will be constant
changechange in technologies and change in the way those
technologies are being used.
Despite its
dominance in our everyday consciousness, all this technology is
ephemeral, vanishing as it grows obsolete in a near blur of changing
materiel used to express each new technological generation. If we try
to govern a technologically aggressive society by writing laws to
respond to specific technologies, or to specific controversies that
result from a particular technology, the legal framework obsolesces
just as does the particular technology it addresses. The only way to
avoid having legislation bypassed by the pace of technological change
is to focus on the uses to which the technology is put, and not the
technology being put to use.
Hearing the Fundamental Chord
We are all
well aware that the Internet is so powerful an agent of change that it
is reshaping every society in which it plays a part. As it does so, it
will increasingly become the vessel through which our society
expresses itself in commerce, in education, in entertainment, in the
arts and in political life. In time, it will become the primary
framework for our culture. In so doing, it will require us to
translate our democratic principles, constitutional guarantees and our
basic tenets of individual freedom, privacy, and free association into
a new vocabulary for a digital world. Not since the American
Revolution has our society been confronted with such a change in our
political and social condition as the Internet revolution will bring
about. Words have never been more powerful nor granted a greater reach
than they are upon the Internet; at no time since the Declaration of
Independence was written has our choice of the words we now use to
reinvigorate and expand the fundamental premises of our society been
more important. The stakes are high, because if we do not define our
digital liberties in the years to come, we will have no liberty at
all.
The Internet is more than a Marketplace; it is a Miracle
The rise of
Internet commerce has preoccupied the national attention and the
economy. Yet, for all the dramatic changes that it has brought to the
way we do business, provide commercial information, and market goods
and services worldwide, it represents but a fraction of the
Internets potential. It provides us with much more than a seemingly
bottomless trough for dot com entrepreneurs, yet we have come to see
the Internet only as an earning tool and not as a learning tool.
Never before
has so mighty an engine for the distribution of knowledge and culture
stood idle at the doorstep of any society. If we can engage the
Internet as an engine for public education, our children will have a
bounty of knowledge, literature, art and science that so far surpasses
what was available to us in our youth that it will seem inconceivable
that our generation and their generation were born and raised on the
same planet. These opportunities for intellectual enrichment,
vocational training, shared professional expertise and teaching open
doors for humankind that are simply beyond our present imagining.
While at
present we struggle with the question of how many hundred websites
there need to be to sell watches, you as lawmakers must not be
distracted from protecting the Internet's potential for the
miraculous. Whenever you are tempted to tinker with the Internet, take
into consideration that within this decade, we will live in a world
enveloped in a quivering electronic membrane of instantly accessible
information, comprising all the knowledge, art, science and history
ever committed to paper in any modern language at any time, humming
over our heads for the rest of our lives, and growing exponentially
without limits for as far into the future as we can imagine.
We have seen
human history only in the parts that have been preserved, seeing our
own past through the slivers of a shattered mirror. What we will give
to posterity is a complete reflection of our time and of ourselves.
That is the legacy for which we have responsibility.
If we
legislate the Internet as we might do if it were no more than a forum
for commerce, we might well be tempted to enact laws in ways
appropriate to markets but not to forums for intellectual, artistic
and political exchange. The freedoms of commerce are much more
parochial than the freedoms of expression. We should strive to avoid
seeing the Internet in too narrow a perspective. If we don't leave
broad expanses for the independent growth of novel and eccentric means
of free expression, for public education and the arts, we risk
chilling the Internet as a venue for diversity of expression and
political thoughtleaving ourselves living in a wired world that has
everything for sale and nothing to say.
The
Internet's great potential is not in raising capital, but in raising
the human condition. For the Internet to do more than fulfill a
mercantile mission, governments must be generous in underwriting the
Internet's non-profit potentialities, and enlightened enough to forego
taking control of it.
Enhancing Preventive Measures is a Better Deterrent than
Enhancing Punishment
Our priority
in Internet policing is to insure that the Internet maintain the civil
order of an open and democratic society. Our citizens must have
confidence that the personal and corporate information and electronic
currency they convey over the Internet is secure. They must have
confidence that when they express themselves on the Internet, whether
through a commercial enterprise or homepage about their family life,
their message, their content, will not be destroyed or overridden by
anyone's whimsy of malice against them, their ideas, or their
enterprise.
So great a
consensus of public support exists for law enforcement to achieve this
goal that any legislation enhancing punishment for denial of service
attacks, theft of credit card information, invasion of privacy and
confidentiality will be well received. Rather than simply make a
political statement and throw more jail time at the problem, we would
do well to measure what response is most likely to deter, if not
defeat, the occurrence of criminal offenses for which we are all ready
to punish severely.
Any
punishment-based deterrent presumes that offenders act rationally,
weighing the risks of capture and confinement against the benefits of
succeeding in a criminal enterprise. The pragmatic lawmaker might
first consider whether this presumption holds true in all cases of
Internet crime. While it is certainly true that a thief who uses a
computer to steal has no different motivation or intent than a common
criminal who might burglarize with pliers instead of wires, many
computer invasions and systems attacks seem motivated more by the
desire to exercise a technical virtuosity than to profit from the
crime.
It is not a
condonation of these acts to recognize that their motivation assumes
an invulnerability to discovery that is in almost all cases,
delusional. If the actor is psychologically disposed to believe that
he or she is so clever that they cannot be apprehended, the deterrent
effect of upwardly spiraling sentencing ranges is greatly diminished.
There is really no social benefit to turning computer criminals into
long term corrections statistics if by correcting the technology, we
can diminish the opportunity for the crime to occur in the first
place. The federal government can make the most effective gains in
reducing hacking attacks of every stripe by supporting research and
development of more capable defensive technology and requiring greater
diligence in the on-site monitoring and administration of commercial
computing systems on and off the Internet.
Encourage Responsive not Proactive Computer Law Enforcement
The
investigation of crime and the apprehension of perpetrators do not run
on Internet time. No professional law enforcement agency can conduct a
thorough and successful investigation of any criminal offense, on or
off the Internet, without applying methodical and time consuming
investigative techniques. It is not a breach of professionalism, but a
mark of professionalism, if these duties take time. In the realm of
Internet crime, the public perception that a hacker can and should be
caught before his fingers leave the keyboard is beyond naive. Law
enforcement's performance in apprehending computer hackers is far from
cause for panic. With the human resources, and funding appropriate to
the task, and in light of the overwhelming support and cooperation
extended to them by the professional computing community, federal law
enforcement can enforce computer laws and deter computer crime by
employing the tried and true traditional methods of meticulous
investigation for which it is well-known.
Because the
Internet is a computer network, an electronic apparatus, albeit an
enormous one, there is a temptation for us to encourage law
enforcement to get its arms around the entirety, to put a policing
overlay into the technical infrastructure itself, so that the
government has the capability to monitor every Internet macro and
micro event. Were this mindset applied to any dimension of our society
other than a technological one, there would be public outrage. In
order to quell domestic violence, would we sit an officer on the sofa
with husbands and wives in every home in the nation? Would this police
tactic quell domestic violence? Absolutely, but at the cost of privacy
in our familial communication and expression that would altogether
inhibit and corrupt our social interactions. The consequences of
surveillance of the whole as a proactive policing strategy are just as
dire. Who would not hesitate to communicate with a loved one in
sensitive terms, or convey privileged or confidential business
information across a system under constant surveillance? The
Internet's rich tapestry of expression on every subject would be
reduced to a sterile and muted code language akin to what the husband
and wife might use in the presence of the unwelcome officer. While
there are risks of criminal exploitation of the Internet, if we depart
from the customary means of criminal investigation merely because it
might be, or become, technically possible to monitor every electronic
action and reaction, we put our open society at a greater risk than
criminals could ever pose.
Insuring Internet Privacy Insures Internet Security
The public
debates on Internet privacy and Internet security have been on
parallel tracks, despite being the same issue. The right to be secure
in our personal and financial privacy on the Internet is viable only
when the Internet as a whole is secure. The Internet must be a place
in which we can trust that all information that is our property cannot
be unwittingly compromised from us by criminal act or commercial fiat.
What we invest as a nation in the upgrade of our network defenses
against unauthorized access to computer resources of any kind should
be reinforced by the enactment of laws that criminalize the
surreptitious access and collection of personal information available
in transit across the Internet and especially information residing on
the individual and business computers connected to the Internet.
The Internet is not a Crowded Theater
To everything
new, we first attach our suspicions. The Internet is no different.
Because it is more interesting if something we rely upon so absolutely
as we do the Internet is portrayed as vulnerable, our public dialogue
about the Internet has relished its shortfalls and ignored its
strengths. The Internet itself is not fragile. Only our public will to
trust in it is fragile. If we over commercialize the Internet, we will
lose as a culture, if we over legislate the Internet, we will
ultimately stunt its growth. If we fear the social, economic and
political changes it will bring, we will try to control it to reflect
what is familiar to us, rather than what is possible for us.
Today, the
Internet as we know it has been brought into being by a generation of
gifted and resourceful people who possessed a vision that has inspired
the world. They are of many backgrounds, many beliefs, they have been
motivated by many different personal and collective goals. If this
description seems familiar, it is because it is written in the same
inks as the history of our nation. The Internet is us. We should have
the same confidence in its resilience, its fundamental virtue and its
potential for greatness as we have always had in our nation and in
ourselves as a people.
In ancient
times along the Fertile Crescent, new civilizations were built from
the fertility brought by the river to the people. The Internet is such
a river, a river of knowledge, commerce and culture upon which a new
millenniums civilization will be built. Building the electronic
edifice which is the foundation of that next civilization is the
legacy of our generation. For us to realize the full potential of the
Internet would be a monument to human civilization that would make the
Pyramids seem like grains of sand.
Through the
technology of today and of tomorrow, we have within our reach a great
uplifting of our nation, and of all humankindan unprecedented
opportunity to make the coming generations more free, more prosperous
and possibly wiser than we were. It would be insufferable and
unexplainable to our children if, out of overreaction to the risks at
hand, we fail to win that prize.
Thank you.
Note: NACDL has not received any federal grant, contract or
subcontract in the current and preceding two fiscal years.