The politics of wiretapping and encryption

Book Excerpt: Privacy on the Line

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Wiretaps, in contrast with searching or bug planting, are inherently difficult to detect. Although it behooves anyone who takes the privacy of communication seriously to assume that every word is being recorded, obtaining confirmation of that fact in any individual instance is usually impossible. Treating wiretaps as searches thus leaves open the possibility that wiretapping may be rampant, may be used as a mechanism of political and social control far beyond the bounds of proper law enforcement, and yet may go unchecked because of public ignorance. Under the "Title III" law of 1968, Congress sought to preclude this possibility by means of stringent reporting requirements. Individuals must be notified that they have been wiretapped, even if they are not prosecuted, and details of all legal wiretapping activity are collected and published in the annual Wiretap Report. In 1978, however, Congress created new authority to wiretap, primarily for counterintelligence purposes. Under the Foreign Intelligence Surveillance Act of 1978, only the total numbers of wiretaps are reported. Details need never be made public.

In the shadows of the government's attempts to control the citizens' access to technology for protecting their communications (and thereby guarantee its ability to understand what it intercepts) lurked plans for a dramatic expansion of the basic ability to wiretap. The Communications Assistance for Law Enforcement Act of 1994 (CALEA) requires that telephone companies make their networks "wiretap ready" so that new features in communications do not interfere with government wiretapping.

This expansion of government power to search flies in the face of a gradual acceptance of a basic human right to privacy. Although it was already recognized in ancient times, privacy has come into its own as a legal entity only in recent centuries. In large part this has been a response to the developments of the technological age. Through a series of court decisions (including NAACP v. Alabama, Griswold, Katz and Kyllo), the U.S. Supreme Court expanded the notion of privacy that is implicit, if never called by name, in the Constitution. Though private businesses often intrude upon individual privacy, the consequences of their intrusions pale beside the consequences of government intrusions. Over the past 50 years, government has on myriad occasions invaded the privacy of individuals in ways that threaten their fundamental rights. Citizens engaged in peaceful political activity (including the Socialist Workers Party, the civil rights movement, and Vietnam War protesters in the 1950s and the 1960s, the Committee in Solidarity With the People of El Salvador in the 1980s, and the L.A. 8 in the last two decades), journalists and editors and political leaders (including Supreme Court justices) all have been wiretapped. Members of Congress who disagreed with the president's policies during the Vietnam era were subjects of biweekly FBI reports. Even politically uninvolved citizens who happened to use mail or telegraph to communicate internationally have had their communications intercepted. Information obtained by the government for use in one venue has often been used in another. Census data were used to locate Japanese-Americans so they could be interned during World War II. Some "national-security" wiretaps under various presidents were actually investigations aimed at domestic politics.

The government's record of privacy violations means that any broadening of its snooping powers must be viewed with the gravest concern. CALEA is the basis for a vast expansion of government surveillance powers. Even if the government's record of using its powers were not strewn with tales of abuse, there would be reason to worry.

Intentions can change far more quickly than capabilities. Today the authority of most government officials to use wiretaps is tightly regulated by laws, but laws can change. Were Congress to decide that wiretaps should be usable by any police department without court supervision -- much as the police are free to employ stool pigeons without court supervision -- the situation would change overnight. The capacity of the telephone system to support wiretaps, by contrast, would not. Although the pre-CALEA phone system was quite capable of supporting the 1,500 or so wiretaps that occurred each year, it was not capable of supporting 10 or 100 times as many. Today, more than a decade after the passage of CALEA, this may no longer be the case. The way has been paved for a vast expansion in government surveillance, and only an act of Congress will be required to bring it about.

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