Two new surveillance proposals by the Clinton Administration, while intended to combat computer-based crime, jeopardize the future of both civil liberties and the Internet. The White House should abandon this new offensive, which represents the latest chapter in the government's efforts to circumvent encryption technology.
Encryption protects the privacy of electronic data and communications by scrambling them into unreadable text. Business transactions can be encrypted, but so can criminal communications and activities. Consequently, law enforcers fear that encryption will empower a computer-driven crime wave.
The Administration has responded with the Cyberspace Electronic Security Act (CESA), uncovered by the Washington Post on August 20, which would vastly expand the surveillance powers of law enforcement. With very few exceptions, agents wishing to conduct a search today must first obtain a warrant and present it to the suspect, who can then monitor the search.
The CESA would bypass this step by allowing agents possessing warrants to surreptitiously enter private property, penetrate computer systems, and secretly implant devices that override encryption programs. Agents could then monitor computer files and transmissions without the suspect's knowledge.
The CESA follows recent revelations that national security agencies are trying to establish a broader cyberspace surveillance system. Dubbed the Federal Intrusion Detection Network (FIDNET), this system would circumvent encryption by monitoring and tracing movements on telecommunications networks, including the Internet. FIDNET's proponents argue that it provides necessary protection against "cyberattack" - attempts to cripple the computer systems of power companies, government agencies, financial companies, and other infrastructure components. But while FIDNET and the CESA are intended only to monitor criminals, their effects on civil liberties and the Internet could be disastrous.
Historically, the United States has struck a delicate balance between individual rights and law enforcement power. Grounded in the Fourth Amendment's protection against unreasonable search and seizure, this balance severely limits government's power to intrude into private affairs and the homes that shroud them. This protects individual privacy and, as a result, promotes the free speech and association that are integral to an effective democracy. These same values are responsible for the vitality and diversity of the Internet.
Cloaked in the anonymity of cyberspace, individuals are free to unite around common interests. Consequently, the Internet has become a forum for discussions, associations, and transactions that would otherwise be quelled by distance. One result is that fringe habits flourish - sites operated by anti-government groups, pornography peddlers, and offshore casinos thrive.
Undesirable to many, the right of citizens to interact with these sites is the cornerstone of a free society. If enacted, the surveillance proposals would threaten these core values.
By allowing law enforcers to secretly invade homes and monitor computers, the CESA grants government the very power that the Fourth Amendment was intended to prevent. Orchestrated by the FBI, FIDNET would introduce a monitoring authority into a realm that thrives precisely because it is not overseen. The biggest threat arises when one considers how easily this power could be misused by government agencies that have a long history of abusing their surveillance authority.
According to a 1995 paper by University of Miami professor Michael Froomkin, the FBI recorded the beliefs and activities of more than one in 400 Americans during the 1970s. Some of this information was collected by illegally opening private letters. More recently, the "filegate" scandal has not yet faded, nor have the heavy-handed violations of civil liberties by the Internal Revenue Service.
On August 21, the CIA announced it had stripped former director John Deutch of his security clearance because he misused classified information. While similar abuses of computer surveillance are not inevitable, government's past privacy breaches confirm the need for caution.
Even if monitoring power was contained, the mere threat of government abuse could have a chilling effect on the Internet. Already privacy-conscious, the public would likely become even more leery of information technologies when they discover that government is using them as a window into private affairs. Fortunately, Congress shares the public's reluctance to embrace surveillance measures.
A full 250 members have co-sponsored legislation that would prohibit the government from requiring that all computer systems contain a "back door." To date, no legislators have introduced the CESA. The House Appropriations Committee responded to the FIDNET threat by cutting back the program's funding. And numerous legislators have criticized the program for what House Majority Leader Dick Armey calls its "Orwellian" potential.
The White House should heed the voice of reason now echoing through Congress and abandon its surveillance proposals. To do otherwise would not only threaten the Internet but shake the very pillars of democracy.
*Justin Matlick is a Senior Fellow in Information Studies at the Pacific Research Institute. To learn more about PRI and the Center for Freedom and Technology, see www.pacificresearch.org.
