[Note from Matthew Gaylor: This will appear in the May 2000 Issue of
The American Spectator and is being sent with permission of Jim
Bovard. You can sample some of Jim Bovard's other writings at
http://www.jamesbovard.com/ . Jim's a busy writer and his work has
appeared in everything from the Wall Street Journal to Playboy. He
has had numerous books published including The Farm Fiasco, Fair
Trade Fraud, Lost Rights, & his recent Freedom in Chains.]
May 2000 American Spectator
THE RISE OF THE SURVEILLANCE STATE
by James Bovard
High-tech whets all the wrong government appetites.
While high-tech breakthroughs make business more productive and life
more pleasant, progress also has a dark side. Technology designed for
benign purposes can be used for ill ones too. The Clinton
administration has led the way, acting as if every new computer and
telephone should have a welcome mat for federal wiretappers. A 1998
American Civil Liberties Union report noted, "The Administration is
using scare tactics to acquire vast new powers to spy on all
Americans."
On April 16, 1993, the White House revealed that the National
Security Agency had secretly developed a new microchip known as the
Clipper Chip. The press release called it "a new initiative that will
bring the Federal Government together with industry in a voluntary
program to improve the security and privacy of telephone
communications while meeting the legitimate needs of law
enforcement." This was practically the last time that the word
"voluntary" was mentioned.
The Clipper Chip's developers presumed it should be a crime for
anyone to use technology--such as encryption--that frustrates
government agents. Encryption software allows individuals to send
messages between computers that cannot be read by third parties. It
is vital to prevent fraud or abuse of financial transactions and is
widely used both here and abroad. Encryption has a long
history--Thomas Jefferson used secret codes in his correspondence to
avoid detection by the British.
"The Clipper Chip proposal would have required every encryption user
(that is, every individual or business using a digital telephone
system, fax machine, the Internet, etc.) to hand over their
decryption keys to the government, giving it access to both stored
data and real-time communications," the ACLU noted. Marc Rotenberg,
director of the Electronic Privacy Information Center, observed: "You
don't want to buy a set of car keys from a guy who specializes in
stealing cars." When the federal National Institute of Standards and
Technology formally published the proposal for the new surveillance
chip, fewer than one percent of the comments received from the public
supported the Clipper Chip plan.
Although it eventually abandoned its effort to impose the Clipper
Chip, the administration did not give up on trying to tap the
nation's telephones. In 1994 it railroaded through Congress a law to
dumb down phone technology in order to facilitate government
wiretapping. On October 16, 1995, the telecommunications industry was
stunned when a Federal Register notice appeared announcing that the
FBI was demanding that phone companies provide the capability for
simultaneous wiretaps of one out of every hundred phone calls in
urban areas. The FBI notice represented "a 1,000-fold increase over
previous levels of surveillance." FBI Director Louis Freeh denied
that any expansion of wiretapping was planned.
The 1994 Communications Assistance for Law Enforcement law led to
five years of clashes between the FBI and the communications industry
over the new standards. The Federal Communications Commission was the
bill's designated arbiter; in August 1999, the FCC caved and gave the
FBI almost everything it wanted. The FCC ordered that all new
cellular telephones become de facto homing devices for law
enforcement by including components which enable law enforcement to
determine the precise location from which a person is calling. As
Electronic Design magazine noted, "Unlike the location feature being
created for 911 emergency services, this capability will apply to all
calls and users won't be able to turn it off." Attorney General Janet
Reno hailed the decision: "The continuing technological changes in
the nation's telecommunications systems present increasing challenges
to law enforcement. This ruling will enable law enforcement to keep
pace with these changes." The New York Times noted, "Law-enforcement
officials have asserted that since the location of wired telephones
is already public information, there is no intrusion of privacy in
determining the location of wireless phones." This is like saying
that since police can determine a person's home addresses by checking
the phone book, it is no violation of privacy to let police follow
the person around every place he goes once he leaves his house.
In addition to telephones, the security of computer software and the
Internet have also been targeted. The administration spent three
years hounding Phil Zimmerman, the inventor of Pretty Good Privacy,
software designed to protect computer data and messages from
surveillance. Someone placed PGP on an Internet site, thus making it
available free to anyone in the world who chose to download it. For
this the feds threatened Zimmerman with a five-year prison sentence
and a million-dollar fine for exporting "munitions." Noted Zimmerman
in a 1999 interview: "In a number of countries with oppressive
regimes, PGP is the only weapon that humanitarian aid workers have to
prevent hostile dictatorships from monitoring their communications."
Last August the Justice Department submitted the Cyberspace
Electronic Security Act to Congress. The bill would make it easier
for government to intrude on private communications by allowing law
enforcement to obtain search warrants "to secretly enter suspects'
homes or offices and disable security on personal computers as a
prelude to a wiretap or further search." Average Americans would face
to "black bag jobs" previously restricted to espionage or national
security cases. Janet Reno justified the new powers thus: "When
criminals like drug dealers and terrorists use encryption to conceal
their communications, law enforcement must be able to respond in a
manner that will not thwart an investigation or tip off a suspect."
But such searches pose special dangers because of the opportunities
for government agents to tamper with evidence while manipulating
software on a target's computer.
In October 1999, members of the international Internet Engineering
Task Force revealed that the FBI was pressuring them to create a
"surveillance-friendly" architecture for Internet communications. The
Bureau wanted the Task Force to build "trapdoors" into e-mail
communications programs to allow law enforcement easy access to
supposedly confidential messages. Several high-tech experts publicly
warned: "We believe that such a development would harm network
security, result in more illegal activities, diminish users' privacy,
stifle innovation, and impose significant costs on developers of
communications." The ACLU's Barry Steinhardt said, "What law
enforcement is asking...is the equivalent of requiring the home
building industry to place a 'secret' door in all new homes to which
only it would have the key." Although the task force managed to
rebuff the pressure, the fact the FBI even attempted to have software
engineers sacrifice e-mail reliability for the sake of government
intrusions is a warning as to how audacious the feds have become.
Last fall news broke about the existence of Echelon, a spy satellite
system run by the National Security Agency along with the United
Kingdom, Australia, New Zealand, and Canada. Echelon reportedly scans
millions of phone calls, e-mail messages, and faxes each hour,
searching for key words. The European Union and the governments of
Italy and Russia loudly protested Echelon's intrusions into their
sovereign domains. European Parliament Speaker Nicole Fontaine
harumphed: ''We have every reason to be shocked at the fact that this
form of espionage, which has been going on for a number of years, has
not prompted any official protest.'' One Portuguese paper complained
that Echelon is "like a technological nightmare extracted from the
crazy conspiracy theories of 'The X-Files.'''
Rep. Bob Barr, a former CIA employee and the most vigilant
congressman regarding federal high-tech intrusions, attached a rider
to an appropriations bill last year that required the NSA and the CIA
to report to Congress on the standards Echelon used to tap Americans'
communications. In a February letter, the NSA assured members of
Congress that "the NSA's activities are conducted in accordance with
the highest constitutional, legal and ethical standards, and in
compliance with statutes and regulations designed to protect the
privacy rights of U.S. persons.'' Even as it professed it would never
act unconstitutionally, the NSA sought to block further House
inquiries into Echelon's operations.
A February report by the European Union alleged that Echelon has been
used for economic espionage. Former CIA Director James Woolsey told a
German newspaper in early March that Echelon collects "economic
intelligence." One example Woolsey gave was espionage aimed at
discovering when foreign companies are paying bribes to obtain
contracts that might otherwise go to American companies. Woolsey
elaborated on his views in a condescending March 17 Wall Street
Journal op-ed, justifying Echelon spying on foreign companies because
some foreigners do not obey the U.S. Foreign Corrupt Practices Act.
To add insult to injury, Woolsey noted there's no reason for U.S.
companies to steal backward Europe's secrets.
Some of the most egregious examples of governmental invasion of
privacy relate to two of the most intimate areas in life--your money
and your body. In September 1999, Marvin Goodfriend, a senior vice
president at the Federal Reserve Bank of Richmond, proposed that
government use new technology to penalize citizens who do not spend
their cash as fast as government wanted. "The magnetic strip [in new
U.S. currency] could visibly record when a bill was last withdrawn
from the banking system. A carry tax could be deducted from each bill
upon deposit according to how long the bill was in circulation."
Wired News noted that a federal "carry tax" would "discourage
'hoarding' currency, deter black market and criminal activities, and
boost economic stability during deflationary periods when interest
rates hover near zero." Rep. Ron Paul, a member of the House Banking
Committee, denounced the proposal: "The whole idea is preposterous.
The notion that we're going to tax somebody because they decide to be
frugal and hold a couple of dollars is economic planning at its
worst."
Lastly, the Customs Service recently began deploying BodySearch
equipment that allows Customs inspectors to see through the clothes
of designated lucky travelers. The ACLU's Gregory Nojeim warned that
the new body scanners could show "underneath clothing and with
clarity, breasts or a penis, and the relative dimensions of each. The
system has a joystick-driven zoom option that allows the operator to
enlarge portions of the image." Customs spokesman Dennis Murphy
explained: "What [BodySearch] does is alleviate the need for us to
touch people, because people don't like to be touched, and we don't
blame them, because our inspectors also feel uncomfortable touching
people." The BodySearch system has a feature that can potentially
violate travelers more than a pat-down from a Customs agent: the
capacity to save images of what it views. Travelers can now look
forward to a new kind of trip souvenir: a picture of their privates
on file at a federal agency.
TAGLINE: Bovard is the author of "Feeling Your Pain": The Explosion
and Abuse of Government Power under Clinton-Gore (St. Martin's Press,
August 2000).
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