Surveillance State democracy

As the FBI seeks full access to all forms of Internet communication, it is not voters who need to be convinced

Published May 6, 2012 11:37AM (EDT)

CNET's excellent technology reporter, Declan McCullagh, reports on ongoing efforts by the Obama administration to force the Internet industry to provide the U.S. Government with "backdoor" access to all forms of Internet communication:

The FBI is asking Internet companies not to oppose a controversial proposal that would require firms, including Microsoft, Facebook, Yahoo, and Google, to build in backdoors for government surveillance. . . . That included a scheduled trip this month to the West Coast -- which was subsequently postponed -- to meet with Internet companies' CEOs and top lawyers. . . .

The FBI general counsel's office has drafted a proposed law that the bureau claims is the best solution: requiring that social-networking Web sites and providers of VoIP, instant messaging, and Web e-mail alter their code to ensure their products are wiretap-friendly.

"If you create a service, product, or app that allows a user to communicate, you get the privilege of adding that extra coding," an industry representative who has reviewed the FBI's draft legislation told CNET.

As for the substance of this policy, I wrote about this back in September, 2010, when it first revealed that the Obama administration was preparing legislation to mandate that "all services that enable communications — including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook and software that allows direct 'peer to peer' messaging like Skype" -- be designed to ensure government surveillance access. This isn't about expanding the scope of the government's legal surveillance powers -- numerous legislative changes since 2001 have already accomplished that quite nicely -- but is about ensuring the government's physical ability to intrude into all forms of Internet communication.

What was most amazing to me back when I first wrote about these Obama administration efforts was that a mere six weeks earlier, a major controversy had erupted when Saudi Arabia and the UAE both announced a ban on BlackBerries on the ground that they were physically unable to monitor the communications conducted on those devices. Since Blackberry communication data are sent directly to servers in Canada and the company which operates Blackberry — Research in Motion — refused to turn the data over to those governments, “authorities [in those two tyrannies] decided to ban Blackberry services rather than continue to allow an uncontrolled and unmonitored flow of electronic information within their borders." As I wrote at the time: "that’s the core mindset of the Omnipotent Surveillance State: above all else, what is strictly prohibited is the ability of citizens to communicate in private; we can’t have any 'uncontrolled and unmonitored flow of electronic information'."

In response to that controversy, the Obama administration actually condemned the Saudi and UAE ban, calling it "a dangerous precedent" and a threat to "democracy, human rights and freedom of information." Yet six weeks later, the very same Obama administration embraced exactly the same rationale -- that it is intolerable for any human interaction to take place beyond the prying eyes and ears of the government -- when it proposed its mandatory "backdoor access" for all forms of Internet communication. Indeed, the UAE pointed out that the U.S. -- as usual -- was condemning exactly that which it itself was doing:

Yousef Al Otaiba, the UAE Ambassador to the United States, said [the Obama administration's] comments were disappointing and contradict the U.S. government's own approach to telecommunication regulation.

“In fact, the UAE is exercising its sovereign right and is asking for exactly the same regulatory compliance — and with the same principles of judicial and regulatory oversight — that Blackberry grants the U.S. and other governments and nothing more,” Otaiba said.

“Importantly, the UAE requires the same compliance as the U.S. for the very same reasons: to protect national security and to assist in law enforcement.”

A week after the announced ban by the Saudis and UAE, The New York Times published an Op-Ed by Richard Falkenrath — a top-level Homeland Security official in the Bush administration and current principal in the private firm of former Bush DHS Secretary Michael Chertoff — expressing support for the UAE’s Blackberry ban. Falkenrath explained that "[a]mong law enforcement investigators and intelligence officers [in the U.S.], the Emirates' decision met with approval, admiration and perhaps even a touch of envy." The Obama administration -- by essentially seeking to ban any Internet technology that allows communication to take place beyond its reach -- is working hard to ensure that its own Surveillance State apparatus keeps up with those of the UAE and Saudi Arabia.

The FBI claims this requirement is merely an extension of current law that mandates that all telecommunications carriers provide government surveillance access to telephone conversations when a search warrant is obtained, and that failure to extend this requirement to Internet communications will risk "Going Dark" with important investigations. There are many reasons why this claim is false.

For one, as surveillance expert Julian Sanchez explained to me in October, the U.S. Government does not need "backdoor" access to all Interent communications in order to surveil even individuals using encrypted communications; instead they can simply obtain end-user surveillance to do so: "if the FBI has an individual target and fear he’ll use encryption, they can do a covert entry under a traditional search warrant and install a keylogger on his computer." Moreover, the problem cited by the FBI to justify this new power is a total pretext: "investigators encountered encrypted communications only one time during 2009's wiretaps" and, even then, "the state investigators told the court that the encryption did not prevent them from getting the plain text of the messages." As usual, fear-mongering over national security and other threats is the instrument to justify massive new surveillance powers that will extend far beyond their claimed function.

Sanchez explains that the true value of requiring back-door access for all Internet communications is full-scale access to all communications: "If you want to sift through communications in bulk, it’s only going to be feasible with a systemic backdoor." McCullagh notes that Joe Biden has been unsuccessfully attempting to ban encrypted communications, or at least require full-scale government access, since well before 9/11. As for why this proposed bill is far more intrusive and dangerous than current law requiring all telephone communications to be subject to government surveillance, see Sanchez’s analysis here. The ACLU makes similar points here about why this proposal is so dangerous, and describes the numerous ways it extends far beyond current authorities concerning government access to telephone communications.

Moreover, for anyone who defends the Obama administration here and insists that the U.S. Government simply must have access to all forms of human communication: does that also apply to in-person communication? Should home and apartment builders be required to install monitors in every room they build to ensure that the Government can surveil all human communications in order to prevent threats to national security and public safety? I believe someone once wrote a book about where this mindset inevitably leads. The very idea that no human communication should ever be allowed to take place beyond the reach of the Government is definitive authoritarianism, which is why Saudi Arabia and the UAE -- and their American patron-ally -- have so vigorously embraced it.

* * * * *

The procedure being used here by the FBI to obtain these powers is just as significant to me as the substance of the policy it wants. Notice how the FBI -- in order to obtain these new powers -- does not believe it needs to persuade the American citizenry to accept it. Instead, they're meeting with the people who actually hold power over our laws -- industry executives -- in order to plead with them not to oppose this. FBI officials even planned a pilgrimage to Silicon Valley "to meet with Internet companies' CEOs and top lawyers" in the hope of obtaining their permission to proceed with this new scheme.

This, of course, is how virtually all American laws are written: by having government officials meet in secret with affected industries to ensure that their interests (as opposed to the interests of ordinary citizens) are protected. This is what the recent (and probably temporary) defeat of SOPA revealed: although it was genuinely encouraging to see so many people from all different realms voice objections to the government's attempted seizure of Internet-control powers, it was really the fact that the Interent industry opposed the law that doomed it. Citizen opposition, by itself, would never have been sufficient to overcome the pro-SOPA lobbying of the entertainment industry; it took a different powerful industry to stop it. For that reason, remaining remnants of Internet privacy depend upon the willingness of the tech industry to defend them, and while some companies have been commendable in those efforts, it's far from clear that industry opposition to increased surveillance powers has anything to do with privacy concerns:

If there is going to be a CALEA rewrite, "industry would like to see any new legislation include some protections against disclosure of any trade secrets or other confidential information that might be shared with law enforcement, so that they are not released, for example, during open court proceedings," says Roszel Thomsen, a partner at Thomsen and Burke who represents technology companies and is a member of an FBI study group. He suggests that such language would make it "somewhat easier" for both industry and the police to respond to new technologies.

There are potentially promising options for at least limiting, if not reversing, this sprawling Surveillance State. The SOPA fight proved that there is a vibrant constituency among Internet users for fighting government control of the Internet, but the key is to ensure that it remains a trans-partisan cause. There are examples demonstrating that restricting government power can transcend standard ideological divides -- Adam Serwer reported last week on the left-right coalition that has arisen against the NDAA's indefinite detention provisions, and we've seen similar coalitions in opposition to the Patriot Act and endless militarism, and in support of transparency for the Fed and in defense of civil liberties and privacy in Britain. Indeed, opposing the Clinton administration's attempt in the 1990s to ban government-proof encryption was once a major cause for self-styled "limited government" conservatives as well as civil liberties groups.

These examples prove that it is possible to mobilize meaningful citizen opposition to growing government surviellance powers if these standard partisan and ideological divdes are overcome. Along those lines, McCullagh notes that "the White House, perhaps less inclined than the bureau to initiate what would likely be a bruising privacy battle, has not sent the FBI's [] amendments to Capitol Hill, even though they were expected last year."

There's also the possibility -- as dangerous as it is promising -- that severe economic anxieties could lead large numbers of people to abandon the two-party mainstream and its orthodoxies; that is precisely what is happening now in Greece. Growing discontent with America's political institutions could scramble and subvert now-unchallenged precepts in all sorts of unpredictable ways, both good and bad (indeed, it seems clear that fear of that sort of unrest is a major factor motivating always-increasing domestic Surveillance State powers).

It is possible for citizens to meaningfully oppose this relentless expansion of the Surveillance State. These ongoing efforts by the Obama administration to ensure full government access to all forms of communication reflect that such efforts are desperately needed. But at least thus far, those who continue to expand the National Security and Surveillance State appear to have little fear of any meaningful citizen backlash.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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