-Caveat Lector-
Didn't John Edgar pass on a while back?
> Now the FBI is telling the Internet Engineering Task Force that they should
> build in surveillance.
>From IntellectualCapital.CoM
{{<Begin>}}
Will the Government Know What You Type?
by Declan McCullagh
Thursday, October 21, 1999
Comments: 15 posts
If you were already worried about your privacy, prepare to get really spooked.
In the future the Feds may find it easier than ever before to eavesdrop on your
e-mail, Web browsing and Internet phone calls.
The group of technical experts who run the Net is weighing whether it should
change technical standards to allow police and other meddlesome government
snoops the right to conveniently wiretap our online actions.
There are so many things wrong with this intrusive idea, which the Internet
Engineering Task Force (IETF) will debate at its November meeting in Washington
D.C., that it is difficult to know where to start criticizing it.
The Feds may find it easier to eavesdrop on your email
But the biggest problem may be that some members of IETF -- generally a
libertarian-leaning crowd -- are seriously considering adopting this scheme.
The thinking among some veteran participants is that U.S. law may require
Internet snoopability in the future, so it is best to hold their noses, do the
dirty deed, and get it over with now.
"The basic problem is that the government will probably demand of IP telephony
the rules that govern wiretaps," says University of Pennsylvania electrical
engineering professor Dave Farber, a board member of the Electronic Frontier
Foundation and the Internet Society. "...I wish we didn't have the law. But
given that the law is there, it's wiser to make sure it just applies to the
stuff that's IP telephony and not all of our data traffic."
Farber might have a point if Congress had approved such a law, the president
had signed it, and the courts had declared it to be constitutional.
But since that has not happened, it makes little sense for the IETF to race to
support surveillance. "There is no reason for the IETF to build surveillance
capabilities into the architecture of the Net," says Barry Steinhardt,
associate director of the American Civil Liberties Union. (Adding snooping
abilities also introduces security holes, something that IETF has vehemently
opposed in the past.)
Then are also good historical reasons for the IETF to be leery of law
enforcement and wiretaps.
A shabby history
In the past, government agencies have subjected hundreds of thousands of law-
abiding Americans to unreasonable surveillance, illegal wiretaps and
warrantless searches. Eleanor Roosevelt, Martin Luther King Jr. are just two
prominent examples. Feminists, gay rights leaders and Catholic priests have
also been spied on. The FBI used secret files and hidden microphones to
discredit political opponents, sway the Supreme Court and influence
presidential elections.
Malfeasants at the Los Angeles Police Department are doing the same thing
today. Last month the LA county public defender's office filed court papers
detailing police and prosecutors' abuses of power and apparent perjury.
"All of the cases which the Los Angeles District Attorney denied, under oath,
in November of 1998 were related to a wiretap, were in fact the result of the
[government's] wiretap operations," the documents say. One single illegal
wiretap produced over 65,000 pages of printed logs -- so many that a forklift
was required to move them.
Under U.S. law, courts are supposed to review wiretap requests to verify that
they are reasonable. But judges are often complicit. One judge authorized the
San Bernadino District Attorney to wiretap public pay phones for four months.
The cops intercepted 131,202 conversations that the district attorney's office
kept for a decade -- but never made any arrests.
As a society, we have a choice: We can trust police never to become
overzealous, trust prosecutors never to become too ambitious, and trust judges
never to become too uncritical. Or we can just simply ditch wiretapping for
good.
A misguided practice
It may seem a radical idea, especially to lazy cops who have come to depend on
that firehose flow of information. (Of course they could still bug rooms and
use informants.)
Yet some law enforcement officials have in the past suggested exactly that.
Attorney General Ramsey Clark prohibited federal police from using wiretaps and
told Congress in 1967, "We make cases effectively without wiretapping or
electronic surveillance." Detroit's police commissioner felt the same way,
calling wiretapping "an outrageous tactic" that "is not necessary."
In a famous dissent in a 1928 Supreme Court case, Justice Louis Brandeis chose
even more dramatic words. "The evil incident to invasion of the privacy of the
telephone is far greater than that involved in tampering with the mails... As a
means of espionage, writs of assistance and general warrants are but puny
instruments of tyranny and oppression when compared with wiretapping."
Some modern civil libertarians like the ACLU take Brandeis' point one step
further, arguing that wiretapping by its very nature violates the Fourth
Amendment's prohibition on "unreasonable searches." They point out that private
conversations with a spouse, doctor, or priest are often intercepted.
If the total cost is taken into account, wiretaps do not seem to be that
efficient an investigative tool. According to government statistics, in 1998
police intercepted 2,313,210 conversations but the taps -- 71% were for drug-
related crimes -- resulted in only 911convictions.
An equally alarming -- through less obvious -- effect of allowing police to
wiretap is that they become reliant on the tactic and start to demand even
more.
Ever-increasing demands
Consider the Communications Assistance to Law Enforcement Act (CALEA), which
the FBI pressured Congress into approving in 1994. The so-called digital
telephony law requires taxpayers to pay for phone companies to rewire their
networks for police eavesdropping.
The Cellular Telecommunications Industry Association estimates that complying
with CALEA will cost over $4 billion. According to the Personal Communications
Industry Association, local telephone companies will have to spend $1.73
billion -- and this money will come from higher taxes on Americans.
Worse yet, the Federal Communications Commission has indicated that CALEA,
which applies to "telecommunications carriers," will spread to cover some forms
of Internet telephony too.
What's most disturbing, though, is that CALEA has set an alarming precedent:
The government has the right to alter new technologies for easy surveillance.
The White House in 1991 planned to do just that. A "top secret" memo obtained
by the Electronic Privacy Information Center through a Freedom of Information
Act request said that President Bush had approved a plan to use CALEA's
legislative momentum to ban encryption products that did not have backdoors for
the Feds. "We will have a beachhead we can exploit for the encryption fix," a
top Bush aide wrote.
Now the FBI is telling the Internet Engineering Task Force that they should
build in surveillance.
"If a standards-setting body is going to fully carry out its mission in
addressing the needs of all groups, you've got to recognize government's
legitimate need to protect public safety and, under specific circumstances,
conduct surveillance," Barry Smith, supervisory special agent in the FBI's
digital telephony and encryption policy unit, said.
Perhaps. But an even better way to protect the public's safety from the
government might just be to eliminate wiretapping altogether, and let the IETF
engineers go back to the much more valuable business of keeping the Internet
humming.
Declan McCullagh is a regular contributor to IntellectualCapital.com, moderator
of the politech mailing list and the Washington bureau chief of Wired News.
{{<End>}}
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