"These consoles are being used as general purpose computers," Higgins adds. "And they're used for all kinds of communications. The Xbox has a very active online community where people communicate. It stands to reason that you could get sensitive and private information stored on the console."
Thing about it: Your Nintendo Wii might tell government investigators when you were connected to the Internet, who you were talking to, what you were saying, and what you were playing. "Taken in context, it could end up revealing more than you expect," Higgins warns. There have already been hacks that could allow for spying on users of the Xbox Kinect, a video-enabled add-on that reads body movement for interactive gaming.
DHS is aware of the domestic privacy issues, which is why it says it intends to target consoles from overseas. "This project requires the purchasing of used video game systems outside the U.S. in a manner that is likely to result in their containing significant and sensitive information from previous users," states the contract. Why go abroad? "We do not wish to work with data regarding U.S. persons due to Privacy Act considerations," says Garfinkel. "If we find data on U.S. citizens in consoles purchased overseas, we remove the data from our corpus."
So will console game manufacturers cooperate with government efforts to break into their devices or will they construct bigger and better firewalls? Neither Microsoft, Sony, Nintendo nor the Entertainment Software Association responded to questions from FP, but the Electronic Freedom Foundation's Higgins believes that the issue of console privacy and security has been neglected because consoles are dismissed as gaming toys. "I've spoken with privacy people at Microsoft, and they're aware that it's something that can be personal and sensitive. If you don't use Xbox, you might think it's just a frivolous video game. But a lot of real communication happens between people in this form. Just because it's a form associated with games doesn't mean it deserves less privacy protection."
Gamers may not have much choice in the matter. Unlike regular computers, whose users can install security software, gamers can't just install an anti-virus program like McAfee or spyware monitoring software. And jailbreaking (modifying) a console runs afoul of the Digital Millennium Copyright Act, which bars circumvention of copyright protection technology. The EFF is lobbying the U.S. Copyright Office for an exemption that would allow users to add essential software such as security programs to their game consoles, smartphones, and tablets.
With pedophiles using consoles as a means to lure victims, or terrorists possibly using them to communicate, it was probably inevitable that video game consoles would be targeted by law enforcement. Indeed, in an era when the National Security Agency can conduct warrantless electronic searches of your email, it is naive to assume that video games would be exempt. There is a powerful case to be made for giving the government the technical means to collect evidence from consoles.
There is also good reason to worry. Numerous cases of illegal wiretaps, as well as surveillance of various political and ethnic groups for dubious reasons, are grounds for suspicion. The issue here may not be just one of privacy, but also of alertness. Those who are concerned about eavesdropping on their voice and email communications may be surprised to discover that their video games are no less secure. And who knows whether some violent trash talk by a teenage video gamer will trigger an alarm in a government surveillance computer?
The sad truth is: When it comes to crime and punishment, even video games aren't games anymore.