Unintended Consequences, Snowden Edition

One of the legal academy’s top thinkers on matters of encryption and privacy (Michael Froomkin) has this to say today about the latest bombshell NSA revelations:

I used to say, we don’t really care if the NSA is reading our traffic, because if they are, the secret is so valuable they won’t waste it on anything but the most important national security matters. The Snowden revelations suggest that wasn’t completely right — there was some information sharing with civilian domestic law enforcement, although it was obfuscated in ways that undermined the constitutional guarantee of the right to confront witnesses against you. More importantly, the fact of the Snowden revelations mean that the cat is out of the bag, so the disincentive to use the information will be greatly reduced.

In other words: what’s the best way to eviscerate privacy protections that are adjudicated on the basis of expectations of privacy? Lower everyone’s expectations.

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