The politics of wiretapping and encryption

Book Excerpt: Privacy on the Line

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The deployment of cryptography maintains slow but steady growth and, in the absence of a new regulatory assault, will eventually become ubiquitous. The high profile of the "crypto wars," however, drew attention away from other developments in communications privacy that may prove more important. At present, the battle over communications privacy is moving in new directions, focusing less on the protection of communications and more on their exploitation.

Over roughly a century, U.S. law has evolved the concept of wiretapping as a form of search to be controlled by court-issued warrants even more tightly regulated than those required for searches of physical premises. Although law-enforcement agencies had been intercepting communications since the 1890s, it was not until 1968 that Congress put law enforcement wiretaps on a solid legal footing. The Omnibus Safe Streets and Crime Control Act, which limited the use of wiretaps to certain crimes and established stringent warrant requirements, was upheld by the courts. As a result, wiretapping has become a generally accepted and ever more widely employed police practice. Law enforcement views the tool as essential, but a closer look at the data shows that things are not so clear-cut. Law enforcement spoke freely of its "right to use court-ordered wiretaps" and saw the use of cryptography as a threat to this right.

In discussions of the right to use cryptography, attention focused on the clearly discernible difference between the right to listen and the right to understand what one has heard. The doctrine of wiretapping as a type of search takes for granted the government's ability to practice wiretapping, just as the Fourth Amendment to the Constitution takes for granted the government's ability to break down doors and look under floorboards. It recognizes the power to intercept telecommunication, like the ability to search houses, as having such potential for abuse as to require stringent judicial control. It regulates the right to listen.

Guaranteeing the right to understand is different. To do that, you must regulate the individual to prevent him from taking actions that would otherwise be within his power to protect his communications from being understood. This seems analogous to the ludicrous notion that the government's right to search your house entails a right to find what it is looking for and a power to forbid people to hide things.

There is a important respect in which wiretaps are in conflict with the traditional notion of search in Anglo-American law. Searches have been, by legal intention and usually by physical fact, obvious. It is difficult to search a property and be sure that the search will not be detected. Furthermore, in a tradition dating back to English common law, secret searches were forbidden; where possible, the searchers were expected to knock and to announce their presence.

The no-secret-searches doctrine has been eroded in U.S. law, at first by judicial tolerance and later by congressional action. In the 1970s, courts began allowing federal agents to make secret entries into private property in order to plant bugs (Burnham, Above the Law

, 1996, p. 133). As an outgrowth of the Aldrich Ames case -- in which a secret search was conducted, but the legitimacy of the evidence so obtained never enjoyed court scrutiny -- the Foreign Intelligence Surveillance Court was given the power under the Patriot Act to order secret searches.

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