The Informant in spite of Himself

-- By PeterLing - 11 Feb 2013 (revised version)

Ancillary law enforcement tasks have sometimes been delegated to private entities. A typical example is the obligation of physicians to report injuries potentially related to violent crime (such as gunshot-related injuries) to law enforcement agencies, in order to facilitate investigations. Entrusting citizens or private entities with such tasks, however, raises potential constitutional issues. It can probably be said that an overbroad delegation of law enforcement tasks to citizens, in particular the reporting of illegal activities, is a characteristic feature of totalitarian states.

Maybe. But that doesn't establish the prior proposition. In fact it's immaterial. A little more analysis of this supposed constitutional problem would be helpful. In particular, I don't see how you fit it into the US constitutional scheme.

Individual rights are endangered by state action, not the words in the statue. Any obligation to denounce only represents an actual threat to the citizens' constitutional rights if it is, in fact, enforced. Conversely, dictatorships do not often bother creating formal statutory rules when forcing citizens to become active collaborators of the state police force. However, the existence of explicit obligations to denounce – even if not enforced at a given period of a country's history – is always a worrisome development. “Dormant” provisions can be easily re-activated anytime without legislative change. Further, the proliferation of such formal obligations is undoubtedly the sign of an unwelcome move from freedom towards oppression.

Informants have always been an integral part of successful law enforcement. However, informants are rare and therefore expensive to find.

Not at all. Informants are plentiful and cheap. But from an intelligence point of view they usually have poor access and poorer reliability.

Informants are not always reliable and often want some favor in exchange for their cooperation. Securing the cooperation of the few, whose business model is harboring, transporting or accessing people's secrets, inevitably leads to more (and more valuable) information.

Before the digital revolution, states tried to obtain information from persons and entities who needed to have knowledge of specific secret information to perform their duties – for example banks or postal carriers. Laws enabling the state to access such information in certain circumstances have long existed in tax law and "lawful interception" statutes. Statutory and constitutional law were supposed to guarantee that any abuse remain as marginal as possible.

Two recent developments, one legislative and one social, fundamentally modified the landscape of non-public information potentially accessible to law enforcement.

On the legislative side, anti-money laundering rules and European-style lawful interception statutes caused a paradigm shift by transforming banks and telecommunication service providers to extended arms of law enforcement. New rules request that banks and telecommunication service providers obtain from their clients information that is not necessary for conducting their business and which exclusively serves law enforcement purposes – for example, banks have to inquire about the origin of deposited funds, while telecommunication firms must store all communication data during fixed periods of time.

It is not necessarily correct that this data has no use to the business. Businesses are learning to use data in new ways, and are prizing what they used to scorn, too.

In parallel, the costs of data storage and transport plummeted in the digital revolution and searching a database has become trivial. Personal data has become a commodity and lots of so-called “Web 2.0” business models, in particular social networks of all kinds, bet on the sheer amount and (supposed) value of gathered and stored personal data. The digital revolution also modified the perception of data by the data subjects themselves. “Sharing” became the main occupation of the “Web 2.0” user, as people started to inform the entire world in real time about their geographical location, holiday pictures or even meals. Social network operators are now in the unique position to understand even some of those secrets that the users have not shared .

State intelligence agencies discovered the unprecedented spying potential of social network operators long ago and social networks are no doubt seen by law enforcement as one of the most valuable sources of information ever.

The operation of social networks is a largely unregulated business. The receiver of the 21st century’s most intimate confessions does not have any general secrecy obligation comparable to even a telecommunication service provider. Social network operators assume by contract the right to store and share all information provided by the user. Most users (at least in developed countries) do not seem to be bothered by giving away for free some of their most cherished secrets, including to the intelligence agencies of their own country and several other countries.

Gathering information for law enforcement purposes is a legitimate state task, using privately held entities to gather information is not. The challenge posed by both above described shifts in the availability of data should be dealt with in two different ways.

From the point of view of the realist, it will be impossible to stop lawful interception or enforcement of money laundering rules from happening, as these tools are highly useful to fight crime.

That's a statement of political reality, if anything: legislators will not vote against such rules. Unless they have a better reason. But the realist knows that the nullification of the rules doesn't take place in the legislature; it takes place in the Net. So what is realistic is the technically possible. On this subject, you shed no light.

Data is “out there”, stored by third parties because it is necessary for conducting their business, and all states (whether ruled by the law or by dictators) want to get access to them. However, the potential for abuse can be strongly limited by introducing simple rules into the relevant statutes. The author of these lines realizes that statutory limitations of state power will not always be complied with, but thinks that they often represent an imperfect but working endeavor to limit any damage to the citizens’ constitutional rights. If duties to spy without any suspicion of illegal activities are abolished, if surveillance by private companies is only ordered based on the actual suspicion that a serious crime has been committed and if none of the described spying by private entities takes place without an order issued by a court, the abuse of state power will be limited – albeit only as long as the rule of law exists in a given country.

The second problem, citizens disclosing intimate details of their lives to the entire world, will not be solved by legislative change. Storing and sharing data by the social network operator based on the agreement with the user can and should not be prohibited in a free society. Even though many users realize these problems, experience shows that they will downplay the importance of the concerns and discard them altogether for convenience – i.e. a nice-looking and well-working online service. But change can only come from the data subjects themselves. Change can and will occur only if users become aware of the potential harm their data disclosures can cause to others and if working, non-spying (and, yes, nicely designed) alternatives become available to fulfill the seemingly endless need for online exhibitionism.

What is the actual conclusion of this essay? That legislation is not going to restore privacy? Let's assume that for the moment. And so?

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