Surveillance or Security?: The Risks Posed by New Wiretapping Technologies (38 page)

It makes no difference if communications occur in wartime in the rice
paddies of the Mekong Delta or during peacetime in the building canyons
of Manhattan. It does not help to tell people to be secure. In order for their
communications to be secure, security must be built into their communications systems. It must be ubiquitous, from the phone to the central office
and from the transmission of a cell phone to its base station to the communications infrastructure itself.

If the integrity of the wire between a subscriber and the central office
is violated, the communications of a single line is at risk. If messages
between cell phones and base stations are not encrypted, the communications of every user within the area of that base station is at risk. If the
integrity of a communication switch is violated, then every communication traveling through that switch is at risk.

Wiretapping on a massive scale creates its own set of risks. The surveillance at the AT&T San Francisco switching facility demonstrated the
obvious: it is difficult to hide the existence of widespread wiretapping.
Extensive and pervasive surveillance of customer communications
changes worker attitudes toward customer privacy.

Telecommunications companies that adhere to customer privacy are
unlikely to suffer problems such as Telecom Italia has. U.S. telephone
companies highly respected customer privacy and telecommunications
security and required their employees to do the same. Matt Blaze, who
once worked for AT&T, recalled, "There was no faster way to be fired (or
worse) than to snoop into call records or facilitate illegal wiretap.""'

In a system that is itself architected insecurely-for example, with the
potential for packet sniffers at routers throughout the infrastructure-two
actions can substantially improve communications security. End-to-end
encryption will ensure security of the message content.12' As for security
of transactional information, it is worth recalling NSA's thoughts on the
matter: if the message were "really uninterceptible" then "the intended
recipient, your own distant receiver, could not pick it up."'22 In order for
the message to be delivered, transactional information must be easily and
widely available along the nodes of its route. (Yes, as noted, Tor and other
systems allow anonymized communication. These have high overhead and
are not expected to be used by the vast majority of users.) But the most
important way to secure transactional information is through company
policies that follow practices such as the following: "Secrecy of communications is a basic requirement and important company policy. It includes
divulging neither the conversation nor the fact that a call was made
between two telephones.""' Although secrecy of transactional information can never be fully guaranteed, it can be protected significantly better than
it is at present.

8.9 Creating Long-Term Risk

Over the last decade, the combination of CALEA and CDR usage in the
President's Surveillance Program has led to a situation in which both communications content and transactional information are more easily accessible than in times past. The CDR data, in particular, has moved from the
telephone companies to the government. In Europe more records are kept
long term, a result of recent data-retention laws. There has been some
movement by the U.S. government to develop similar laws. There is
"bugging everywhere," including cars that enable remote tapping without
the placement of a bug and some new products such as VoIP that leave
records of content (in contrast to voice calls, which were far more ephemeral). It is appropriate to step back and think about the responsibilities of
the U.S. government to its people.

The foundation of U.S. law is the Constitution; the Preamble lays out
what type of nation the United States is to be:

We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence [sic], promote
the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Because the Preamble is not a source of authority for government nor a
provider of specific powers, constitutional scholars have by and large
ignored it.124 The Preamble does, however, set a stage for the role of government. As a result, the Supreme Court has occasionally relied on it in
decisions determining limits on the power of the government. In Kansas
v. Colorado,125 for example, the Supreme Court focused on the phrasing
"We the people of the United States," pointing out that it was not the
people of one state, but the people of all states126 who framed the Constitution. The Court concluded that the Tenth Amendment did not give rights
not reserved to the federal government to the states, but rather to the
people. In U.S. Term Limits, Inc. v. Thornton,127 the Court ruled that Arkansas
could not put term limits on congressional service because allowing a state
to do so would be a "fundamental change in the constitutional framework,"
enabling "individual States to craft their own qualifications for Congress ...
thus [eroding] the structure envisioned by the Framers, a structure that was
designed, in the words of the Preamble to our Constitution, to form a "more perfect Union."128 Again the Court turned to the Preamble in forming
the basis for its opinion.

With these examples in mind, consider the values the Preamble deems
important. The context for the Preamble and the U.S. Constitution is the
failed Articles of Confederation, which too loosely bound the states to be
effective. In its early years, the United States faced a certain amount of
internal turmoil (e.g., Shay's Rebellion129) that threatened domestic tranquility. The U.S. Constitution, creating a stronger federal government, was
the response.

In the Preamble to the Constitution, justice and tranquility precede
defense, general welfare, and liberty. While this may seem odd-surely it
is not the case that justice and domestic tranquility are more important
than security13o-it is understandable in the context of the internal problems that existed in the early years of the republic. This ordering indicates
that external security without justice and domestic tranquility is of little
value; justice and domestic tranquility are sufficiently important that security should not trump them.

Along with preserving justice and domestic tranquility is the government's responsibility for the preservation of liberty. Here the Preamble
employs a very interesting construction: liberty should be protected not
only for the present but for our posterity. This clearly states that the U.S.
government has a paramount responsibility to preserve the liberty of its
citizens. Richard Posner has argued strongly that civil liberty curtailments
taken in times of crisis-the Civil War, World War II, and the Cold War131were "fully restored" once the crisis ended.132 The crucial aspect of the issue
is the length of the loss of civil liberties. As Supreme Court Justice Robert
Jackson has observed,

No one will question that [the war] power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement,
when calm legislative consideration of constitutional limitation is difficult. It is
executed in a time of patriotic fervor that makes moderation unpopular. And, worst
of all, it is interpreted by judges under the influence of the same passions and pressures. Always, as in this case, the Government urges hasty decision to forestall some
emergency or serve some purpose, and pleads that paralysis will result if its claims
to power are denied or their confirmation delayed. Particularly when the war power
is invoked to do things to the liberties of people, or to their property or economy
that only indirectly affect conduct of the war, and do not relate to the management
of the war itself, the constitutional basis should be scrutinized with care.133

That last point is critical: the constitutional basis should be scrutinized with
care. The case in front of Justice Jackson concerned federal rent controls, controls that were imposed after World War II because of a shortage of
housing that resulted from the war. Jackson supported the controls, but
wrote, "I cannot accept the argument that war powers last as long as the
effects and consequences of war, for, if so, they are permanent-as permanent as the war debts. 11134

For a moment, suppose that we grant that under emergency circumstances, justice and domestic tranquility can take a second place to security. Under the U.S. constitutional system, such periods should be brief.
The absence of liberties should be measured in days and weeks, not months
and years. It should never be decades. That is where the problem of changing technological standards to accommodate wiretapping becomes very
important. Even if we were to grant that liberty can briefly take a second
place to security, changing technological standards to accommodate wiretapping fails the test, because it becomes a change of decades, a change
that is far greater than is permissible under the Constitution.

When a law is rescinded, either legislatively or as a result of a court
ruling, new instances operate under the previous law. But technological
"law"135 does not work this way. Technology cannot simply be rescinded.
Indeed, because technology must often be "backward compatible"-that
is, capable of interoperating with older devices-technological standards
often endure long after new ones have replaced them. Thus, for example,
Microsoft was forced to keep support of the old operating system DOS
(Windows 3.1) in its Windows system for fifteen years.13' Only with VISTA
was Microsoft able to jettison the old system-and the security risks
included in it.137 Another example is QWERTY, the layout of letters on a
keyboard,138 which has lasted over a century.

In the case of large, complex infrastructure, standards last for decades
(the PSTN must recognize the 1950s telephone that sits on my desk). We
have seen many instances of security vulnerabilities in interception
systems. The longevity of technology infrastructure increases the risk that
the eavesdropping capabilities might be used against the United States,
destroying those very "blessings of liberty for our posterity."

The United States has led the world not only through technology and
innovation, but also as a moral leader. For decades the Statue of Liberty
has stood as a beacon of hope, offering economic and political freedoms.
This freedom has played an important role in keeping the United States
secure from homegrown terrorism, while European democracies have come
under attack from their own citizenry. But the technological and policy
changes enacted beginning in 1994 with the passage of the Communications Assistance for Law Enforcement Act, and continuing with the USA
PATRIOT Act and the warrantless wiretapping of the Bush presidency,
threaten those freedoms.

In chapter 5 I examined the effectiveness of electronic surveillance in
the "war on terror." Here I look at the other side of the coin, examining
the policy risks inherent in communications surveillance since the mid1990s. The "security" protections that have arisen in the first decade of
the twenty-first century have costs. As Georgetown law professor Laura
Donohue has observed, "The damage caused to the United States and the
United Kingdom by antiterror legislation is significantly greater than it
appears."' Much of that occurs on the policy side of the equation.

What is the right approach in securing the nation's communications
as we face the competing-and contradictory-demands of a mobile
society, critical infrastructure that is increasingly reliant on an IP-based
network, and a dangerous, nihilistic foe? How should we structure communications surveillance? Any resolution of these questions must
adhere to the fundamental principles espoused in the U.S. Constitution,
principles very similar to those espoused in the Universal Declaration
of Human Rights and the European Convention on Human Rights.'
These will be my compass as I examine the policy risks emanating from
wiretapping.

9.1 Wiretapping the Press

A fundamental aspect of U.S. democracy is the First Amendment:

"Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances."

The amendment occupies a hallowed position in U.S. law; its importance
cannot be overemphasized. The freedom to publish cannot be restricted
by the government. For the press to fully function, however, more is
needed than the freedom to publish. The press must also be able to gather
information.

Of course the government may restrict access to information, and the
consequences of publishing restricted information remain a contested
issue. Without the ability to do such investigative reporting, there would
be no information on abuses by government-corruption in the New York
City Police Department,3 Watergate, Abu Ghraib, the warrantless wiretapping of the Bush administration, the torture memos-and no ability to
right these wrongs. Yet the rights that investigative reporters have to
protect their sources remains murky.