Government Secrecy and Wiretaps

I’d like to respond to Dan Solove’s article “How Much Government Secrecy Is Really Necessary” with the perspective of a veteran of the 1990s crypto wars, in which we fought the NSA for the practical right to build and use encryption to protect sensitive data. A central tenat of the government’s position was that there were important things that the public did not know, and could not be told. This was the “if you knew what we knew” argument, and in its most effective form, was delivered in the form of “the brief,” a theatrical presentation involving clearances, special bug-sweeping teams, and finally, details about how various forms of wiretaps had protected truth, justice, and the American way from evildoers. We called those bad guys the four horsemen of the infopocalypse, and they were terrorists, drug dealers, money launderers, and child-pornographers. They were sufficiently a stereotyped part of the debate that sometimes we even laughed at them.

The claim that the debate couldn’t be participated in by the public was a powerful appeal to anyone who trusted that the people in government had any shred of decency. Worse, most of the people on the other side were in fact decent folks, trying to do their banal jobs.

Solove quotes President Bush as saying:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

That is an utter lie. Before I explain how it is a lie, I’d like to finish with my story from the crypto wars. The wars eventually got hot enough that Congress asked the National Academy of Science to weigh in. A team of the great and good who had served their country was assembled. Protests were voiced over the composition of the team: It was a collection of heads of NSA, CIA, Generals and Admirals, with only a few token liberals. We were all shocked when the report, “Cryptography’s Role In Securing The Information Society” came out. Herb Lin had done an outstanding job of putting together a detailed, fair study of the issues.

I believe it was Ron Rivest who pointed out the most important part of the study, which was that the great and good and Top-secret-cleared committee swept aside the claims that anything classified illustrated any point that had not been made in the open debate. That is, classified details helped tell the stories, but the stories, in broad form, were all public. The American people could have an informed debate about the issues.

Returning to Solove’s comments:

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

So, allow me to ask: what is the class of communication which may not be wiretapped? The NSA has broad legal authority under US law to snoop on those outside the United States without warrants. With warrants, it may assist on snooping on those inside the United States. Local police and the FBI both have the ability to obtain wiretap warrants. What’s left? Nothing. What is secret about the previous statements? Certain details of the Foreign Intelligence Surveillance Court. But what of the President’s claim “our enemies have learned information they should not have?” The ability of the United States to tap every communication is not secret. What is being debated is the need for a warrant and judicial oversight of the acts, not the acts themselves. Is the number of wiretaps a secret? Nominally. The numeric scale and capacity of the Echelon system was reported on in Nicky Hager’s “Secret Power.” (1996) The capacity and fail-over capabilities were disclosed to Congress and the press in the aftermath of the NSA year 2000 meltdown.

The second half of the President’s key sentence is: “and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” That is also not so. Anyone fighting the United States will study our operational methods, and be aware of the Echelon system. They will be fully aware that we can listen to every phone call they make. There are claims that Bamford’s revelation that we listened to bin Laden talking on his satellite phone caused operational changes in al Qaeda in the mid-1990s. It is possible that stories such as these call attention to the fact that we’re listening, and cause a temporary uptick in the quality of al Qaeda tradecraft and operational security practices.

If that is so, then the correct response would be to follow the law in wiretapping, because the government already has the authority to do it anywhere it has any reasonable reason to want to. If the law had been obeyed, there would be no news. [Update: The law in question is Title 50, Subchapter 1, and provides for criminal penalties. Thanks to Perry Metzger for pointing this out.]

The real core of this story is that the President is fond of his power to act unfettered, to use his vast power as he sees fit. Power really does tend to corrupt. The power to listen to anyone, anywhere is not enough. What the President is arguing for is that his powers to do so should be un-restrained and un-reviewed. That the trifecta of Executive, Legislative and Judicial is quaint, and that we should trust him to prosecute the war on terror without limits. I wish his administration would behave such that we could be comfortable with such trust. It has not, and their response to our questions further erodes such trust.

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