ONTD: Politics

WASHINGTON — Broad new regulations being drafted by the Obama administration would make it easier for law enforcement and national security officials to eavesdrop on Internet and e-mail communications like social networking Web sites and BlackBerries, The New York Times reported Monday.

The newspaper said the White House plans to submit a bill next year that would require all online services that enable communications to be technically equipped to comply with a wiretap order. That would include providers of encrypted e-mail, such as BlackBerry, networking sites like Facebook and direct communication services like Skype.

Federal law enforcement and national security officials say new the regulations are needed because terrorists and criminals are increasingly giving up their phones to communicate online.

"We're talking about lawfully authorized intercepts," said FBI lawyer Valerie E. Caproni. "We're not talking about expanding authority. We're talking about preserving our ability to execute our existing authority in order to protect the public safety and national security."

The White House plans to submit the proposed legislation to Congress next year.

The new regulations would raise new questions about protecting people's privacy while balancing national security concerns.

James Dempsey, the vice president of the Center for Democracy and Technology, an Internet policy group, said the new regulations would have "huge implications."

"They basically want to turn back the clock and make Internet services function the way that the telephone system used to function," he told the Times.

The Times said the Obama proposal would likely include several requires:

-Any service that provides encrypted messages must be capable of unscrambling them.

-Any foreign communications providers that do business in the U.S. would have to have an office in the United States that's capable of providing intercepts.

-Software developers of peer-to-peer communications services would be required to redesign their products to allow interception.

The Times said that some privacy and technology advocates say the regulations would create weaknesses in the technology that hackers could more easily exploit.

Source

Resisting the urge to use any Orwellian rhetoric, I find this highly problematic.

The decision, though an instant landmark in American legal history, is more than that. It also is a stirring and eloquently reasoned denunciation of all forms of irrational discrimination, the latest link in a chain of pathbreaking decisions that permitted interracial marriages and decriminalized gay sex between consenting adults.

As the case heads toward appeals at the circuit level and probably the Supreme Court, Judge Walker’s opinion will provide a firm legal foundation that will be difficult for appellate judges to assail.

The case was brought by two gay couples who said California’s Proposition 8, which passed in 2008 with 52 percent of the vote, discriminated against them by prohibiting same-sex marriage and relegating them to domestic partnerships. The judge easily dismissed the idea that discrimination is permissible if a majority of voters approve it; the referendum’s outcome was “irrelevant,” he said, quoting a 1943 case, because “fundamental rights may not be submitted to a vote.”

He then dismantled, brick by crumbling brick, the weak case made by supporters of Proposition 8 and laid out the facts presented in testimony. The two witnesses called by the supporters (the state having bowed out of the case) had no credibility, he said, and presented no evidence that same-sex marriage harmed society or the institution of marriage.

Same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions and raise children, he said. Though procreation is not a necessary goal of marriage, children of same-sex couples will benefit from the stability provided by marriage, as will the state and society. Domestic partnerships confer a second-class status. The discrimination inherent in that second-class status is harmful to gay men and lesbians. These findings of fact will be highly significant as the case winds its way through years of appeals.

One of Judge Walker’s strongest points was that traditional notions of marriage can no longer be used to justify discrimination, just as gender roles in opposite-sex marriage have changed dramatically over the decades. All marriages are now unions of equals, he wrote, and there is no reason to restrict that equality to straight couples. The exclusion of same-sex couples from marriage “exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage,” he wrote. “That time has passed.”

To justify the proposition’s inherent discrimination on the basis of sex and sexual orientation, he wrote, there would have to be a compelling state interest in banning same-sex marriage. But no rational basis for discrimination was presented at the two-and-a-half-week trial in January, he said. The real reason for Proposition 8, he wrote, is a moral view “that there is something wrong with same-sex couples,” and that is not a permissible reason for legislation.

“Moral disapproval alone,” he wrote, in words that could someday help change history, “is an improper basis on which to deny rights to gay men and women.”

The ideological odd couple who led the case — Ted Olson and David Boies, who fought against each other in the Supreme Court battle over the 2000 election — were criticized by some supporters of same-sex marriage for moving too quickly to the federal courts. Certainly, there is no guarantee that the current Supreme Court would uphold Judge Walker’s ruling. But there are times when legal opinions help lead public opinions.

Just as they did for racial equality in previous decades, the moment has arrived for the federal courts to bestow full equality to millions of gay men and lesbians.