Code 2.0

Legal Studies Research Paper, No. 129, 2006).

10.

This is just what happened, Seventh Circuit Court of Appeals Chief Judge Richard Posner argues, when the Warren Court constitutionalized criminal procedure. To compensate for the increased difficulty in convicting a criminal, Congress radically increased criminal punishments. See Richard A. Posner, 'The Cost of Rights: Implications for Central and Eastern Europe — and for the United States,' Tulsa Law Journal 32 (1996): 1, 7–9. Professor William Stuntz has made a similar point. William J. Stuntz, 'The Uneasy Relationship Between Criminal Procedure and Criminal Justice,' Yale Law Journal 107 (1997): 1, 4. The Constitution, in this story, acted as an exogenous constraint to which Congress could adjust. If the protections of the Constitution increased, then Congress could compensate by increasing punishments.

11.

Initially, the CALEA requirements extended to 'facilities based' VOIP services only, though the push more recently is to extend it to all VOIP services. See Daniel J. Solove, Marc Rotenberg, and Paul M. Schwartz, Information Privacy Law, 2nd edition (New York: Aspen Publishers, 2006), they summarize the VOIP situation on pp. 287–88: 'Voice over Internet Protocol (VoIP).'

12.

See Federal Communications Commission, Further Notice of Proposed Rulemaking, Released November, 5 1998, at p. 25 ('In the matter of: Communications Assistance for Law Enforcement Act') ('J-STD-025 includes a `location' parameter that would identify the location of a subject's `mobile terminal' whenever this information is reasonably available at the intercept access point and its delivery to law enforcement is legally authorized. Location information would be available to the LEA irrespective of whether a call content channel or a call data channel was employed.'). The FBI's desire to gather this information was challenged by civil liberties groups and industry associations. See United States Telecom Association, et al. v. FCC, 227 F.3d 450 (D.C. Cir. 2000). The Court permitted the cell tower information to be revealed, but only with a more substantial burden placed on the government.

13.

See Center for Democracy and Technology, 'FBI Seeks to Impose Surveillance Man dates on Telephone System; Balanced Objectives of 1994 Law Frustrated: Status Report,' March 4, 1999, available at http://www.cdt.org/digi_tele/status.html (cached: http://www.webcitation.org/5IwsaQrc7).

14.

Declan McCullagh, 'ISP Snooping Gaining Support,' CNET News, Apr. 14, 2006, available at http://news.com.com/ISP+snooping+gaining+support/2100-1028_3-6061187.html (cached: http://www.webcitation.org/5IwsfxhrA). On March 15, 2006, the European Parliament passed a directive concerning the obligations of publicly available communications services with respect to the retention of data. See Eur. Parl. Doc. (COD/2005/0182). Members of Congress have been mulling over similar legislation. See Anne Broache, 'U.S. attorney general calls for `reasonable' data retention,' CNET News, Apr. 20, 2006, available at http://news.com.com/U.S.+attorney+general+calls+for+reasonable+data+retention/2100-1030_3-6063185.html (cached: http://www.webcitation.org/5IwsiMJus).

15.

Directive on the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available electronic Communications Services or of Public Communications Networks and Amending Directive 2002/58/EC, available at http://register.consilium.eu.int/pdf/en/05/st03/st03677.en05.pdf (cached: http://www.webcitation.org/5IwspCzlR).

16.

Declan McCullagh, 'Bill Would Force Websites to Delete Personal Info,' CNET News, Feb. 8, 2006, available at http://news.com.com/2100-1028_3-6036951.html (cached: http://www.webcitation.org/5IwssTqBR).

17.

For a good discussion of the Clipper controversy, see Laura J. Gurak, Persuasion and Privacy in Cyberspace: The Online Protests over Lotus Marketplace and the Clipper Chip (New Haven: Yale University Press, 1997), 32–43. For a sample of various views, see Kirsten Scheurer, 'The Clipper Chip: Cryptography Technology and the Constitution,' Rutgers Computer and Technology Law Journal 21 (1995): 263; cf. Howard S. Dakoff, 'The Clipper Chip Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementation,' John Marshall Law Review 29 (1996): 475. 'Clipper was adopted as a federal information-processing standard for voice communication' in 1994; see Gurak, Persuasion and Privacy in Cyberspace, 125.

18.

See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of Encryption Research, Wiretap Politics, and Chip Design (Sebastopol, Cal.: Electronic Frontier Foundation, 1998), ch. 1.

19.

For a good summary of the Clipper scheme, see Baker and Hurst, The Limits of Trust, 15–18; A. Michael Froomkin, 'The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution,' University of Pennsylvania Law Review 143 (1995): 709, 752–59. For a more technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, 2d ed. (New York: Wiley, 1996): 591–93.

20.