Beware the Brave New World

Sunday, April 30, 2000

Historically, the greatest threat to personal privacy has been the state. It still is. Jealous of its own secrets, the government covets ours.

Illustration by Taylor Jones for the Hoover Digest.
 

Governments combine an apparently limitless appetite for information with unprecedented power to obtain such information. Ironically, though, the same technologies that have done so much to erase privacy also provide some prospect of being able to protect it. This has raised the anxiety of the intelligence agencies, who fear that communications might not be as transparent or as easy to intercept as they had hoped.

Ultimately, that is what the keyhole wars are all about. The government's assault on privacy is waged on three fronts:

  1. Government intelligence agencies insist on having a built-in trapdoor in the nation's information infrastructure so they can easily intercept and listen in on and/or read personal communications.
  2. As those systems become more secure, law enforcement demands that it be given access to any keys to codes that seek to keep information private and secure.
  3. Intelligence agencies continue to wage their decades-long campaign to weaken the privacy and security precautions available to private citizens. Limiting our ability to use encryption technology remains a top priority for much of the federal government.

Although issues like "digital telephony" (the FBI's wiretap initiative) and the fight over encryption sometimes seem of interest only to netzines and other wonks, the issues are central not only to any discussion about the shape of the Information Age but also to the future of privacy. Much of the communication that now occurs electronically once took place face to face: behind closed doors, in a field, in bedrooms and living rooms, far from prying eyes or ears. This was considered a basic freedom: Men and women could engage in discussions about politics or finance or their personal lives, free of surveillance, monitoring, or censorship by others, including the police or other agents of the state. Increasingly, however, our lives are played out in the electronic world. We use electronic communications not only to buy things but also to decide what we read and what we watch. Cyberspace is where many of us gather to hear the news, debate politics, find new loves, explore our individual tastes. And, occasionally, it is where criminals plan their crimes.

In other words, what once took place behind locked doors now occurs on-line. But here is the rub: The same technology that threatens to erase the private also holds the promise of restoring it. Digital communications are more difficult to tap than over-the-wire communications, and encryption—scrambling or encoding data and other communications—theoretically makes it impossible to read those communications even if they are intercepted.

This makes some government agencies unhappy because the new technologies greatly increase the ability of individuals—including criminals—to ensure the privacy of their communications. By invoking fears of drug cartels, kidnappings, and international terrorism, the FBI has sought the power to be a fly on the wall in the new information age. The agency wants to build a peephole into every electronic wall. In effect, its proposals would require all our systems of communications to be equipped with an unblinking surveillance camera that can be turned on under the proper circumstances. Beyond that, it wants the keys to every door, every file cabinet—the code to every private communication in the electronic age.

The Keyhole Wars

In January 1994, Vice President Al Gore outlined the administration's vision of the information superhighway to an enthusiastic audience in Los Angeles. He embraced proposals for a deregulated system with open competition and universal access. Media coverage was extensive and generally sympathetic, but lost amid the enthusiasm for the brave new information world was Gore's signal to the law enforcement community that it would play a central role in the development of the national information infrastructure. Sandwiched between his more libertarian themes, Gore promised that the White House would work to ensure that the superhighway would "help law enforcement agencies thwart criminals and terrorists who might use advanced telecommunications to commit crimes." On the Air Force 2 flight out of Los Angeles after the speech, privacy advocate John Perry Barlow asked Gore what this meant for the administration's policy regarding cryptography—the encoding of electronic communications to ensure their privacy and security. Barlow recounts that Gore became entirely noncommittal: "'We'll be making some announcements . . . I can't tell you anything more.'"

Illustration by Taylor Jones for the Hoover Digest.
 

Skeptics of government goodwill could turn to a long list of abuses. From 1940 to the early 1970s, intelligence agencies routinely opened and read the mail of individuals under suspicion. Sometimes agencies like the CIA opened mail at random, despite federal laws that make tampering with the mail a crime. Prominent activists, from Eleanor Roosevelt to Martin Luther King Jr., were also subjected to bugging and wiretaps. Perhaps most famously, the Nixon administration illegally wiretapped four journalists and more than a dozen government officials, ostensibly to search out leaks to the media. Although the taps never uncovered the source of the leaks, they netted a huge amount of delicious gossip about personal problems, sex habits, and delicate personal relationships. At one point, the FBI actually wiretapped a sitting member of the U.S. Supreme Court—William O. Douglas—and agents listened in on the conversations of Chief Justice Earl Warren and Associate Justices Potter Stewart and Abe Fortas.


The FBI proposals would in effect require all our systems of communications to be equipped with unblinking surveillance cameras that could be turned on under the proper circumstances.


Similarly, law enforcement agencies kept close tabs on groups they regarded as potentially subversive, entering the office of the Socialist Workers Party more than two hundred times and photographing nearly ten thousand documents between 1941 and 1976.

In April 1971, the U.S. Senate's Subcommittee on Constitutional Rights—known as the Ervin Committee—exposed a vast system of spying on civilians by the military. Tens of thousands of card files and dossiers of potential "dissidents" were kept on file by the Military Intelligence headquarters at Fort Holabird, Maryland. Three years later, Ervin's committee reported that fifty-four federal agencies operated no fewer than 858 databanks that contained more than a billion separate records on American citizens. Eighty-four percent operated without any explicit legal authorization, and fewer than 33 percent of them notified citizens that they were collecting information about them.


In the ongoing struggle over privacy, the Clinton administration has firmly sided with the intelligence agencies. The administration has pushed for the so-called Clipper Chip, which would go into every phone and computer and would enable the government to decode any electronic communication.


Senator Ervin reflected the growing concern of many Americans—both inside and outside the government—over government-sponsored privacy invasions: "When people fear surveillance, whether it exists or not, when they grow afraid to speak their minds and hearts freely to their government or to anyone else, then we shall cease to be a free society."

Peepholes

Even though it would be the most zealous advocate for the idea, the notion of government peepholes did not originate with the Clinton administration. Beginning in the early 1990s, under the Bush administration, the FBI had quietly tried to persuade telecommunications companies to voluntarily provide FBI-friendly backdoors in their technologies. But the campaign, dubbed "Operation Root Canal" within the agency, proved unsuccessful. Instead of giving up, the FBI began instead to push legislation that would have required all providers of electronic communication to provide immediate, real-time interception of all communications. The new law would also have covered computer networks as well as phone companies. Critics immediately denounced the proposal, questioning whether it was needed and warning that the proposal could actually weaken computer security by creating new holes. The proposal would have required companies installing new lines to get permission from the Department of Justice, which could deny a request if the system was not sufficiently easy to wiretap. An editorial in the Washington Post denounced the legislation as "an assault on progress, on scientific endeavor and the competitive position. It's comparable to requiring Detroit to produce only automobiles that can be overtaken by faster police cars." More damning was the finding of the GSA, the government's primary purchaser of communications equipment, that the FBI's trapdoor proposal "would make it easier for criminals, terrorists, foreign intelligence [spies], and computer hackers to electronically penetrate the phone network and pry into areas previously not open to snooping."

Faced with opposition from the telecommunications industry and the public, the legislation died. But the FBI's interest was unabated. When Bill Clinton came into office, anxious to establish an image of being tough on crime, he was receptive when the FBI told the incoming administration that the wiretap proposal was "not their top initiative, it was their only initiative." Setting the tone of much of the debate that was to follow, FBI director Louis Freeh warned darkly, "Without an ability to wiretap, the country will be unable to protect itself against foreign threats, terrorists, espionage, violent crime, drug trafficking, kidnapping, and other crimes."

In August 1994, the administration introduced the FBI bill. The new legislation succeeded in splitting the industry opposition, by limiting coverage to "common carriers," and expanded the prohibition on the interception of cell-phone conversations to cordless phones and other communications that had been scrambled to protect privacy. But the legislation required that the telecommunications industry change its technology to allow for the immediate interception of calls and their transmission to a remote government facility where agents armed with warrants could listen.

Supporters of the legislation argued—and continue to maintain—that the legislation merely maintained the balance between law enforcement and personal freedom provided in the Constitution. That balance, they insisted, was threatened by the new technology because it would put many communications beyond the ability of law enforcement to access even with a bona fide court order. Even with the new trapdoors, they insisted, agents would still need a warrant approved by a judge before a wiretap could be approved. So, they argue, nothing had really changed.

This was decidedly not how civil libertarians and privacy advocates saw it.

The American Civil Liberties Union charged that the legislation "created a dangerous and unprecedented presumption that government not only has the power, subject to warrant, to intercept private communications, but that it can require private parties to create special access. It is as if the government had ordered all builders to construct new housing with an internal surveillance camera for government use." Privacy advocates, including Marc Rotenberg and David Sobel of the Electronic Privacy Information Center, urgently tried to make the case that the legislation broke dangerous new ground. In a letter to Senator Malcolm Wallop, they warned that the nation's communications infrastructure "has never before been designed with the stated purpose of facilitating the interception of private communications. . . . While we as a society have always recognized law enforcement's need to obtain investigative information upon presentation of a judicial warrant, we have never accepted the notion that the success of such search must be guaranteed."


Trusting the government with your privacy is like trusting a Peeping Tom to install your window blinds.


Privacy concerns were not the only questions raised by the legislation. Despite the urgent, anxious warnings of dire consequences if the tapping bill were not passed, the New York Times reported in March 1994 that there were "no instances in recent years where the FBI agents had encountered any technology-based problems in conducting wiretaps." The FBI later insisted that it had encountered such barriers but was able to cite only ninety-one incidences.

Opposition to the legislation drew an unusual collection of liberals and conservatives, both fearful of the precedent the legislation would provide. The reaction of editorialists was similarly negative, casting the proposal in Orwellian terms.

The chorus of opposition, however, was no match politically for the FBI's warnings. Escalating his rhetoric, Freeh warned that without a wiretap-friendly telecommunications system, his agency "may be unable to intercept a terrorist before he sets off a devastating bomb . . . unable to rescue abducted children before they are murdered by their kidnappers." Against such rhetorical pyrotechnics, personal privacy concerns seemed to be very weak tea indeed.

Brushing aside the many concerns, Congress passed the FBI bill with extraordinary alacrity. The House Judiciary Committee approved the bill on October 4, 1994; the full House adopted it on October 5. The Senate Judiciary Committee approved the legislation the following day, and the full Senate gave it final approval the next day. President Clinton quietly signed it into law on October 24, 1994.

Dropping the Next Shoe

The ease with which the wiretap bill was passed was a chilling precedent for future struggles over privacy on the information superhighway. Clearly, the FBI's trapdoor into the superhighway provided merely the first opening. During the fight over the wiretap legislation, the ACLU warned that, despite the bill's exemption of on-line services, the ultimate target was on-line communications.

For many privacy advocates, the ability to have private communications in the electronic era is the privacy issue of the next decade. Indeed, the stakes could not be higher: Even as intellectual property becomes more valuable, it has become more vulnerable, as communication becomes more mobile and more easily interceptible. Moreover, the lines between the various forms of communication continue to blur as voice, data, and visual communication are bundled together, sometimes wireless, sometimes over common carriers.

With all of the eyes watching and ears listening, what possible assurance can we have that any of this can be kept private?