government's excuse for broad
July 15, 2000
It seems like almost every day you hear about the FBI, the NSA or some other government agency bemoaning their inability to monitor Internet traffic and asking for broad new enforcement and monitoring powers. Their excuse is that new technologies make it difficult to intercept messages that they easily intercepted in the past, when in fact, they are asking for monitoring powers that not only go far beyond any capabilities they have ever had, but are a serious violation of our Fourth Amendment protections. They claim that anonymous browsing tools such as the Anonymizer and encryption tools like Pretty Good Privacy (PGP) are hindering their ability to catch criminals. What they are actually doing is twisting the facts to their own ends and hoping that the public and the courts will not put the pieces together.
That is what I intend to do in this article - put the pieces together. I'm not going to ask you to believe any new "secret facts" or some "conspiracy theory," but simply follow the logic. The facts are already widely known. Most readers of this article will readily recognize the truth in the facts stated here. My sole purpose in this article is to get people to think and understand how and why the government is trying to hoodwink us on this issue and hopefully to encourage some to take political action to prevent any further encroachment upon our Right to Privacy, as guaranteed by the Fourth Amendment.
Almost all of the government's case is based upon their claim that due to recent advances in technology, they can no longer intercept suspect communications that they easily intercepted until only a few years ago. They would have us ignore the fact that it was advances in technology that occurred only a few years earlier, that gave them the ability to intercept those communications in the first place. Since they have chosen to put this argument into a historical context, let's look at the history of government interception of civilian communications, but let's not stop at just the last decade or two, as the government would have us do. Please bear with me for the next two paragraphs on the history of civilian communications, as the historical perspective that they set up are critical to understanding why the government's requests for new monitoring capabilities should not only be denied, but their monitoring capabilities should, in fact, be seriously rolled back.
For most of our history, the vast majority of our civilian confidential communications were limited to either postal mail or word of mouth. The telegraph was a great speed improvement over mail, but it was seldom used for confidential communications, because of the fact that numerous telegraph operators along the way had to read and relay the message to the next station - not very confidential.
Even when the telephone was developed, it was many years before it was used for confidential communications. Early telephone operators were renowned for listening in on conversations and gossiping about them later. In fact, the Strowger selector, the invention that ultimately took the operator out of the loop, was invented by an undertaker who was losing business to another undertaker whose telephone operator wife was routing Strowger's calls to her husband's funeral parlor. Even after the invention of the Strowger selector in 1888, it was many years before most communities had fully automated telephone switching centers and even those were only for local calls. It wasn't until several years after one plus dialing came into broad availability in the late 50's that people began to feel secure in their electronic communications. Also, as late as 1945, barely 50% of households had telephones. The installed base reached 75% in 1955 and only reached 90% in 1969. Yet, even at that late date, many people still had party lines. OK, end of history lesson.
What this all boils down to is that until the late 60's, if the government wanted to monitor our confidential communications, it most often involved the manpower intensive task of intercepting postal mail to or from the target and steaming it open. Somebody had to read the mail and then reseal it. Since it involved many people, all the way down to the local mail carriers and mail sorters, keeping the monitoring efforts secret was difficult. But, it was the cost in time and manpower that made warrants for such monitoring rare. This isn't news. It's simply history. Until the late 60's, when telephones came into wide use as a trusted form of communications for the private and confidential exchange of information, the monitoring of our confidential communications, even with a warrant, was difficult and rare.
Modern telephone technology changed all of that. Suddenly, within a matter of only a few years, monitoring a citizens confidential communications went from being the manpower intensive task of intercepting, opening, physically reading and resealing every piece of the target's mail, to requiring only a pair of alligator clips, a voice activated tape recorder and one person for about an hour or two a day to listen to the tape. The government now had monitoring capabilities that they had not even dreamed of only a decade earlier. A side effect that benefited the government was that such monitoring involved much fewer people and could more easily be kept secret. It should be noted here that the tape recorder was connected to a particular pair of wires that tied directly to the telephone that was to be monitored, so there was absolutely no chance of intercepting communications that did not originate or terminate at the target telephone. Certainly, postal mail was still monitored at times. But, since phone monitoring was just as productive and so much cheaper and at about the same time, technologies were becoming available to prevent mail being opened without leaving telltale signs, monitoring of postal mail was only used as a last resort. This technology was quite a coup for the government's monitoring capabilities. It was a condition that would exist throughout the 70's and 80's.
The email Windfall
Enter the Internet generation and a technology that would be a boon to government monitoring efforts a thousand times - NO - a MILLION times greater than the telephone had been - email.
It was not until email came into broad use that the government realized that the technology goose had laid them a great big golden egg. As more and more people began using email for their confidential communications, the government spooks realized that the same device that gave us email - the computer - also gave them the ability for completely unattended monitoring.
Think about those last two words very carefully - UNATTENDED MONITORING!
But, it gets worse - much worse. It also gave the government the capability for the most ominous of all endeavors.
That's what the government's case is all about - INDISCRIMINATE and UNATTENDED MONITORING!
With this new technology, they no longer had to connect their monitoring device to a single pair of wires, which had the effect of limiting what they collected to only what the court order specified. Instead, they could simply attach a specialized "sniffer" to a network carrying THOUSANDS of private and confidential communications and programmatically search for suspicious words or phrases. Then only those emails containing a suspicious word or phrase would have to be read by a single government agent. Think of that. As late as 1965, such a task would have required over 100,000 full time personnel to intercept, transport to the reading room, open, read, reseal and insert those letters back into the mail system. In the 70's and 80's it would have required tens of thousands of listeners at banks of tape recorders to sort through the thousands of irrelevant conversations to find the few that might contain evidence of a crime. The advent of email was indeed a windfall to government monitoring of civilians. But, it gave them an added capability, as well. Although the warrant always specifies what information is to be captured, once they are attached to a network, there is nothing preventing them from monitoring ALL of the traffic on the network for "suspicious" activity. And now, recent advances in optical character recognition and voice pattern recognition now makes it just as easy to monitor confidential fax and voice communications.
Now certainly, the United States government would not do such a thing. After all, we have laws. NOT!
We do have laws against such things, but those laws have been trampled by the stampede of technology. By this time, who has not heard of ECHELON (see the ECHELON Pages), the NSA's worldwide network of computers and monitoring stations that monitors most private communications, including those of EVERY U.S. citizen? Remember a few paragraphs back when I said that it would be easy to monitor THOUSANDS of confidential messages. Well, in fact, former Director of the NSA, Vice Admiral William Studeman, stated that in 1992 the NSA was intercepting more than TWO MILLION phone, fax, telex and email messages PER HOUR. And, we have just recently learned some of the ominous details of the FBI's ECHELON wannabe, Carnivore.
These systems are in operation today and the chances are 100% that a large part of YOUR PRIVATE, PERSONAL and CONFIDENTIAL communications have been monitored by one of these systems. Regardless of whether it was in a phone conversation, a fax or an email, if you talked about having to gun you engine or how your child caught a long bomb at the game or mention that your father's constitution is not what it used to be, count on it - that conversation was reviewed within minutes by a living breathing person. To skirt the Fourth Amendment, the NSA is not doing the monitoring of US citizens directly. They leave that up to their partners in crime, Great Britain, Canada, Australia and New Zeland. In return, the NSA monitors their citizens for them.
Think back to 1990, shortly after former Rumanian Dictator, Nicolae Ceausescu was overthrown. Remember how appalled we were when we learned about Ceausescu's monitoring network. We were shocked to learn the breadth of Ceausescu's vast monitoring capabilities. Well, what we, as U.S. citizens face from our own government today is far worse than anything that Ceausescu could have even dreamed of.
Remember that it was not just technology that gave the government these vast new monitoring powers. It was the concurrent lack of offsetting technology on the civilian side of the equation that made all of this possible. That offsetting technology is just now becoming available and that is what the government is whining about.
The government is asking for even more monitoring capabilities. Give me a break! What we should be doing is placing severe limits on the capabilities that they are allowed to employ. Police work has been replaced with wire taps, fax taps and email taps. The fact that the older methods required large numbers of people to be involved in any monitoring effort was itself a safeguard against abuse. Today, an FBI agent takes a Carnivore system into an Internet Service Provider's (ISP) office, connects it to the ISP's network and locks it in a cage. Only that agent and maybe his bosses have any idea what information is actually being collected by Carnivore.
There are NO SAFEGUARDS.
The government gives us the weak excuse that the safeguard is the court and the warrant process. But, technology has subverted that process. What is to prevent the FBI from getting a warrant to place the Carnivore system on a major ISP's network, for the stated purpose of trapping email to or from a single major terrorist and then setting it to also trap email to or from a thousand other people (maybe including you)? The answer is absolutely NOTHING. Any information that they gather that way would not be admissible in court. But, if they handle it right, they can use the information from Carnivore to arrange to "legally" discover the same evidence some other way. Then the Carnivore data will be destroyed before charges are filed (after all, the FBI learned from Nixon's mistakes).
Let's assume that your child is friends with another child at school who made a comment that he would get even with some third child. The school principle ignores the fact that the child is an honor student with many friends and even a member of a Christian youth group, because he remembers that the child's father has one of those evil NRA bumper stickers on his car, so he calls the police and suggests that this child should be watched. They pass it on to the FBI, who is about to install a Carnivore system on an area ISP, so they include the child's email address on Carnivore's watch list. And then, to be on the safe side, they also include all of his friends' email accounts and any email accounts that they may have access to, including yours. A few days later you joke in an email to your accountant that you will "have to find a way to hide that money before the government takes it all." The next thing you know, you are the target of not just an IRS audit, but a full scale IRS investigation. Of course, there is never any mention of Carnivore in the proceedings against you. After all, that information was obtained illegally. But, since nobody but the agent in charge had access to the system and the information was deleted after it was passed on to the IRS, who is to know? It's like I said above, There are NO SAFEGUARDS.
There is NO OVERSIGHT. You are at the mercy of a single agent.
There is safety in numbers. I'm not suggesting that we go back to a system that would require a hundred people to monitor the mail of just one person. But, we should modify the current system to require that multiple civilians be intimately involved in each and every monitoring case. Rather than placing a "black box" in a locked cage, the FBI (or any other police agency) should be required to supply source code to the ISP, who would compile the program on their computer, with the target email addresses input into the code from the text of the warrant, by the programmer, with the owner or manager looking over his shoulder. This puts two people outside of government in the loop. If the agent asks them to add a few email addresses, he takes a big chance of being discovered and punished. This would not prevent government agents from doing their job. It would not even make it that much harder. In fact, it might even make it easier. Since an employee of the ISP would be involved, the agent might even save himself a trip to the ISP's site by calling the ISP and asking if any emails had been trapped in the last 24 hours.
Remember this very important fact:
Government authorities want you to forget that fact.
Government authorities want you to think that it has always been this way.
Government authorities would have you forget that they did their jobs very well for over 200 years without the technological tools that they have today, using only civilian assistance.
Tools for the UNATTENDED and INDISCRIMINANT MONITORING of civilian communications did not exist until very recently.
For roughly the first 95% of our history, government authorities had to rely upon civilians for assistance in monitoring other civilians.
Civilian involvement has always been the safeguard that has kept the government in check.
When government agencies ask for more monitoring capabilities, the public should respond with a resounding "NO!" But that is only being reactive. We should also become proactive and demand that laws be written and enforced that will require significant civilian involvement (meaning at least one management level person and one staff level person) at the data collection point, in each and every case where civilian communications are monitored without the civilian's knowledge. Furthermore, those civilians who are involved in the monitoring effort should not be licensed, certified or otherwise obligated to any government agency, to prevent them from acting as an unofficial arm of that government agency. Only then can we be somewhat assured that rogue agencies like the BATF and IRS or individual agents, eager for promotion, don't abuse the system.
As for ECHELON, that system is so intrusive and indiscriminate that the only way to fix it is to completely dismantle it. A new reduced version might be created at a later date under the proposed civilian involvement rules. But, the current ECHELON system is a cancer that is eating away at our society and our freedoms and must be cut out completely. ECHELON has single-handedly created a need for a 28th Amendment, clarifying and strengthening the Fourth Amendment, and placing the same limits upon information received from foreign governments as are placed upon information received directly by U.S. authorities.
It is not technology that is making it harder for the government to monitor our confidential communications. Technology has actually made it easier for government to monitor our confidential communications in the last few decades. What has actually happened is that civilian technology has just begun to catch up with recent advances in government technology and now the baby (government) is crying because Daddy (the people) is taking away his candy (recently acquired snooping capabilities) that the baby (government) got without permission. And, just like a baby, the government cries loudest when you take something away that they should never have had, than if you had never let them have it in the first place.
There are no bills in Congress at this time to implement such safeguards, so I ask you to contact your Congressman and Senators today, direct them to this page and tell them that you want to see a bill passed this session of Congress that will require significant civilian involvement at the data collection point, in each and every case where civilian communications are monitored without the civilian's knowledge. Tell your elected officials that law enforcement agencies should have less monitoring capabilities, not more. Point out that the monitoring capabilities that the government now has are only the result of very recent advances in technology on the government side and that their requests for more powers are due to the fact that civilian technology has simply caught up. And above all, tell them that ECHELON must be dismantled.
There must be CIVILIAN OVERSIGHT!
2000 John Gaver
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