WHEN the United Arab Emirates announced last week that it would suspend BlackBerry service within its borders starting this fall, business travelers who rely on the handheld devices reacted with understandable dismay. But the decision was greeted quite differently by the men and women who make a living hunting terrorists, smugglers, human traffickers, foreign agents and the occasional team of clumsy assassins. Among law enforcement investigators and intelligence officers, the Emirates’ decision met with approval, admiration and perhaps even a touch of envy.

Why? Because just as professionals depend on mobile devices to do their jobs, law enforcement and intelligence officers depend on electronic surveillance to do theirs. The Emirates made their decision principally because Research in Motion, the Canadian company that provides BlackBerry services, refused to modify its information architecture in a way that would enable authorities to intercept the communications of select subscribers.

Monitoring electronic communications in real time and retrieving stored electronic data are the most important counterterrorism techniques available to governments today. Electronic surveillance is particularly vital in combating global terrorism, where the stakes are highest, but it is a part of virtually all investigations of serious transnational threats.

The ways in which individual governments perform electronic surveillance are highly idiosyncratic, controlled by a bewildering patchwork of laws and technical capabilities that vary from country to country, agency to agency, service provider to provider, application to application. Intercepting a land-line phone call, for example, is entirely different from intercepting a voice-over-Internet call, and retrieving an e-mail is different from retrieving a text message. For obvious reasons, governments (and former officials) do not openly explain how their electronic surveillance powers vary from one communications method to another.

The United Arab Emirates is in no way unique in wanting a back door into the telecommunications services used inside its borders to allow officials to eavesdrop on users. In the United States, telecommunications providers are generally required to provide a mechanism for such access by the Communications Assistance for Law Enforcement Act of 1994 and related regulations issued by the Federal Communications Commission. As a general principle, information-service providers here must provide a means for federal agencies, usually the F.B.I., to view the ostensibly private data of their subscribers when lawfully ordered to do so.

The F.C.C. is not, however, a national security agency: it is an independent, bipartisan commission whose members serve fixed terms. The commission interprets a variety of statutes and balances many different interests, including the business success of telecommunications providers and the convenience of consumers, and its rulings are subject to legal challenge in the courts.

As a result, there remain a number of telecommunication methods that federal agencies cannot readily penetrate. Given the way the F.C.C. operates, the prospect of it taking a swift, decisive action to make these services accessible to the government is almost inconceivable. Hence the envy some American intelligence officials felt about the Emirates’ decision.

Research in Motion is learning a lesson that other companies have learned before. As we saw in 2000 with Yahoo’s failed attempt to maintain a forum to sell Nazi memorabilia in France, and with Google’s repeated attempts in recent years to deliver uncensored search results in China, no provider of information services is exempt from the power of the state. The stakes are simply too high for governments to cede the field to private interests alone.

Companies can sometimes evade government intrusion for a while. In many cases, governments fail to keep pace with telecommunications innovation; in others, governmental intrusion into ostensibly private communications offends liberal sensibilities.

But in the end, it is governments, not private industry, that rule the airwaves and the Internet. The Emirates acted understandably and appropriately: governments should not be timid about using their full powers to ensure that their law enforcement and intelligence agencies are able to keep their citizens safe.

 

Richard A. Falkenrath, a principal of the Chertoff Group, a risk-management consultancy, is a former deputy commissioner for counterterrorism for the New York Police Department and deputy homeland security adviser to President George W. Bush.

 

http://www.nytimes.com/2010/08/10/opinion/10falkenrath.html?ref=todayspaper&pagewanted=print