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From Washington: The Unhappy but Beneficial Coexistence of the FBI and the Tech Elite

With goals too divergent and world views too far apart, the feds and the tech sector remain married, for better or worse.
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There’s much more than 2,846 miles between the heart of Silicon Valley and the J. Edgar Hoover building in Washington D.C. They lie on each side of a long-standing divide between those who believe human nature is generally good, and those who believe it tends toward the bad.

Silicon Valley’s young entrepreneurs, fortified by generational luck and stock-market success—barely shaken by Nasdaq’s 60% loss—join with scientists and liberal advocates in a generally rose-tinted view of life. They yearn for freedom to set humanity, ambition, sexuality, and capital free from the surly bonds of past prejudices, because of their complete confidence that their rationality can make all well, despite the occasional downturn, disaster, or disease.

But FBI officials live in a parallel world: They wait in a van at 2 a.m. for the murderer to appear at a local bar; they pick through the vile-smelling detritus of a crack house for evidence of another ruined life and ghastly death; they root through the city dump for computer disks thought to contain nuclear-weapon secrets; they cut out a cancerous spy from their midst. Basically, they’re the clean-up crew for this freest society in the world, wearing rubber gloves as they separate truth from lies.

Like many other law enforcement agencies, the FBI has a comparably dim view of the high-tech sector and its libertarian ways. Where high-tech companies see exports, the FBI also sees terrorists and drug smugglers hiding behind encryption. When free-speech advocates rail against wiretaps, it also sees shoals of child-molesters feeding on obvious FBI child-porn bait and networked drug-smugglers selling poison around the country. When the FBI agents drag thugs off street corners, they also see the swells gliding by in their BMWs on their way to their new offices in the technology parks and university campuses.

And so, for most of the Internet community’s 10-year existence, the tech industry has seen the FBI as an unwelcome, stiff-necked presence, threatening to restrict encryption, break apart financial deals, block high-tech exports, and eavesdrop on private conversations.

These different perspectives clash in Washington, especially on the encryption issue. FBI director Louis Freeh fought long and hard to slow the spread of hard-to-crack encryption, and even raised the issue of regulating encryption sales within the U.S., but was pushed back and eventually defeated by a loose coalition of circumstances, corporations, and by advocates on the libertarian right and left.

Technology was advancing worldwide, and various groups pushed it as fast as they could for assorted financial and ideological rewards. Freeh could not build an international agreement to restrict the technology, and so each national government acted on its own, pursuing its own national interest. The defeat was announced last year by the Clinton administration, which effectively killed any efforts to steer the technology’s development in ways favored by law authorities.

At the same time, the FBI shot itself in the foot by naming its Internet-tapping device "Carnivore." This aggressive name began as an internal, supposedly humorous, nickname that morphed into a formal name. It reflects the FBI’s gung-ho approach, its let’s-get-it-solved-in-15-minutes style, say current and former FBI officials.

"The FBI is one of the few institutions in the federal government that has no doubt about who the good guys are," said Stewart Baker, a former counsel to the National Security Agency and now a lobbyist for high-tech firms. "[FBI officials] are convinced of their mission in a way the Bureau of Labor Statistics is not, and they tend to assume everyone feels the same way about it." That style has allowed the FBI to rapidly solve many tough crimes, but also impels the FBI to barge into telecom executives’ offices demanding cooperation—and also to barge into Silicon Valley’s financial forecasts demanding companies alter their technology, business plans, and moral outlook.

The FBI shot itself in the foot by naming its Internet-tapping device "Carnivore."

Carnivore is a high-tech upgrade of existing alligator-clip wiretap devices long used to trap crooks big and small. Large companies don’t seem to care much about it, perhaps because it is aimed at Internet users, not companies. But free-speech advocates in the Internet community—aided by advocates such as the American Civil Liberties Union, who oppose wiretaps—are trying to curb use of the new device, and hope to entangle it in red-tape and controversy. This will be difficult, not only because the FBI wants it, but also because many in Congress and among the public are delighted to see the FBI putting crooks behind bars.

However, the FBI knows the public is wary. The public likes the FBI’s computers that allow them to trap the Oklahoma bomber and the Twin Towers bombers in a few hours; it likes the generally successful war on drugs. The public likes the FBI’s genetic databases that prove the identity of rapists; it likes the FBI’s manhunts for escaped felons; it wants the FBI to quickly arrest computer hackers, terrorists, and bank robbers (popping those bank perps is still the FBI’s favorite, and arguably least useful, activity). But the public—and many judges—does not like the idea that the FBI is prying into their health records, their backyards, their neighborhoods, and their electronic conversations, and that public wariness has undermined the FBI’s reputation and political clout during the last several years. Such public suspicions "may be a good thing," said John Collingwood, the assistant director of the bureau’s public affairs and congressional office, because "we’re a powerful organization and we should be under suspicion."

The FBI tries to walk the line carefully, but is not always successful. In the 1970s, the FBI spied on left-of-center political activists while tracking left wing domestic terrorist groups such as the Weathermen. Since then, operating under more restrictive laws, its surveillance programs have periodically outraged leftists, environmental activists, civil libertarians and technophiles, and under the Clinton administration, peaceful pro-life groups who were suspected of involvement with attacks on abortion clinics. But the respect earned by Freeh and the FBI has stayed high in Washington, despite repeated problems and scandals over the last eight years.

Much of this respect was earned when Freeh publicly distanced himself from Clinton after the 1994 election in which Republicans took over control of Congress, and then distanced himself from the majority Republicans as they began their investigations of Clinton’s fund-raising practices. This respect has translated into forgiveness for operational errors and sympathy for their pleas for legal restrictions on technology. This respect also translates into extra funds when the agency asks for more agents and more missions, including a growing role as the nation’s first line of defense against overseas threats.

The agency will need all the political support it can get in the next few months as it tries to win U.S. government support for the Council of Europe’s cybercrime treaty. The treaty was pushed by Freeh and Janet Reno, Clinton’s chief of the Justice Department, but industry has objected to various provisions that would have made it liable for failing to collect data for possible subsequent release to cops armed with a court order.

There’s plenty for anyone to worry about in the treaty-reciprocal international enforcement and information-sharing rules, and increased police access to personal data, but there’s also plenty of reasons to want a treaty that allows the rapid international pursuit of criminals that use computers for moving funds, storing records, or for actually committing crimes. This treaty, in theory, is reasonable—after all, in the U.S., we have interstate pursuit of automobile-using bank robbers. In this debate, the FBI will push for as much authority as it can get, but will meet resistance from privacy advocates, industry executives, and President George W. Bush’s Attorney General, John Ashcroft, who has long been a skeptic of the FBI. Congress will also resist, partly because the Internet’s contribution to economic growth is seen as more important than the FBI’s contribution to crime control, despite the Nasdaq implosion costing perhaps $2 trillion or $3 trillion in paper losses.

The FBI may also lose clout if it can’t show the Democrats and the left that it is independent of the GOP, which now controls two of the three branches of government. In this long-term fight over crime and technology, Freeh and his successors will try to peel industry away from the privacy advocates—as has occurred before, most notably with the 1995 law that gives government money to the phone companies to make their computerized phone networks wiretap-friendly.

For example, Freeh has stepped up efforts to combat the theft of intellectual property, earning the plaudits of many in the software and movie businesses who don’t like to see their property fenced via Napster and other marketplaces. The pending cybercrime treaty will likely help such copyright enforcement, much to the delight of the property owners. For civil libertarians, this FBI campaign threatens free speech. But it does offer a silver lining. The FBI pursuit of copyright theft reduces pressure on industry to impose copyright protection technology that might wipe out the fair use practices that now allow citizens to resell books and use modest portions of records and movies for personal and commercial purposes. In that role, the FBI acts as a counterweight to amoral corporate power, akin to the Turing police in William Gibson’s sci-fi novel Neuromancer who strove to keep the global computer networks under human control.

The FBI may lose clout if it can’t show the Democrats and the left that it is independent of the GOP, which now controls two of the three branches of government.

There will be no happy merger of the minds between law enforcement agencies and the tech elite. Their professions are too different, their goals too divergent, their world views too far apart. But most of us gain from their forced and unhappy coexistence—including the lobbyists, advocates, and politicians who endlessly argue over the best compromise between law and technology.

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