As Congress prepares to tighten the thumbscrews on encryption technologies and expand federal surveillance powers, both components of the government’s burgeoning effort to battle terrorism, critics are calling for caution and more deliberation.
“Do we really show respect to the American people by slapping something together, something that nobody on the floor can explain, and say we are changing the duties of the attorney general, the director of the CIA, the U.S. attorneys, we are going to change your rights as Americans, your rights to privacy?” asked Sen. Patrick Leahy, D-Vt., regarding the Combating Terrorism Act.
Attached to a massive House appropriations bill, the measure passed the Senate last week with less than 30 minutes of debate.
Given the importance of the legislation, Leahy expressed concern that he and his colleagues were expected to vote on the measure within minutes of receiving it – regardless of time required to read and understand the amendment or conduct hearings in the appropriate committees: Intelligence, Armed Services and Judiciary.
“If that is what the Senate wants, we can vote for it,” he said. “But … we are going to do it with no hearings, no debate. We are going to do it with numbers on a page that nobody can understand.” And without much discussion about whether the laws will actually help.
“I don’t think there’s been any debate yet about whether these measures will protect anyone,” said J.D. Tuccille of the Henry Hazlitt Foundation, addressing the haste in which the Justice Department and Congress have conducted the push for anti-terrorist legislation.
Even without time to scan legislation on which they’re voting, lawmakers scurry in support, Tuccille told WorldNetDaily, because “politicians want to seem proactive.”
“This is a very sticky wicket,” said Peter G. Neumann, principal scientist for SRI International Computer Science Laboratory and a specialist in the areas of computer security and cryptography applications.
“People think that technological solutions work against social problems,” he told WND, but he said they usually do not, because “there are too many ways of getting around the technological solutions.” Nonetheless, lawmakers tend to support them, regardless of efficacy, because of the desire to stay in the good graces of their constituents.
“No senator in his right mind is going to oppose a perceived solution to terrorism,” said Neumann. “In a time of crisis everyone wants to appear 100 percent behind something, even if they don’t agree with it.” And in the wake of history’s most brutal terrorist attack on U.S. soil, congressmen have little trouble justifying swift, even reckless, action.
While a recent Pew Research Center survey found that 70 percent of Americans oppose losing their right to private Internet or phone communications (a possible result of Bush administration proposals), a Princeton Survey Research Associates poll found widespread support for government action against so-called “uncrackable” computer encryption.
Some “72 percent of Americans believe that anti-encryption laws would be ‘somewhat’ or ‘very’ helpful in preventing a repeat of last week’s terrorist attacks on New York’s World Trade Center and the Pentagon in Washington, D.C.,” according to an MSNBC report on the survey.
While the Pew numbers indicate that Americans still cherish their privacy, according to Neumann the Princeton figures indicate widespread ignorance on the subject of encryption technology.
“Probably 90 percent of Americans don’t have a clue what crypto is doing to protect them,” he said. “Identity theft was a big issue until the attacks. Your personal privacy is very important. What crypto is doing in some of the privacy concerns is protecting you against identity theft.”
But with the death toll mounting from the Trade Center and Pentagon attacks, it is easy for congressmen to stand behind a majority of 72 percent in calling for increased regulations on encryption products – regardless of whether they work.
An early outline of the Bush administration’s request that Congress expand its powers to snoop Internet activity and eavesdrop phone conversations and voicemail contains no crypto restrictions, according to a copy obtained by Wired News. This could change, as the Bush proposal makes its way through Congress, especially considering that Sen. Judd Gregg, R-N.H., made it clear last week he was setting his sights on private encryption.
Only days after the attacks, Gregg said that software firms “should understand that as a matter of citizenship, they have an obligation” to give the state keys to their encryption.
But will it help having backdoor access? Criminals are notorious for not obeying the law. What makes senators believe that terrorists will comply with U.S. cryptography laws?
“Crypto is out there,” said Neumann. “There’s not much governments of the world can do about it.”
Terrorists can also bypass traditional encryption with steganography. Directly tied to Osama bin Laden, as reported in February by USA Today, steganography works by hiding secret messages in innocuous corners of the Web, burying them in a flood of surrounding data. Unless authorities know where and for what to look, the message goes unseen.
“This is not a black-and-white issue; there is no easy answer. Crypto is just one piece of the puzzle. Computer systems not being secure also is a big issue to the defense of our nation and individual privacy. I think the average person doesn’t have a clue to that,” Neumann said.
Calling for cooler minds, Neumann warned, “Any knee-jerk reaction is a bad thing, pro-crypto or anti-crypto. We’ve got to think this stuff through rather than passing legislation without debate.”
In his influential Slashdot column, digital guru Jon Katz joins Neumann in calling for a more deliberative approach, but Katz’s thrust is mainly against those criticizing the government’s call for greater surveillance powers.
“The Justice Department isn’t proposing dropping all restrictions or warrants or oversight regarding wiretapping and surveillance. They propose to ease some of them. This may or may not be a good idea,” he said. “But it needs – deserves – to be rationally and openly considered.”
Still, Katz is cautious. “Nobody in his right mind would support a blank check for government authorities. Any new laws to fight this new kind of war ought to be temporary, and self-expiring, perhaps subject to annual review.”
Katz’s sunset angle is shared by others.
“I’d rather we don’t do it at all, but if we do, they should have built-in sunsets,” said Tuccille, adding that another important question yet to be asked is how “these powers are going to be used, not just next week – but beyond that, once another administration is in power.”
The question of how the power will be used in the future is a real concern, Michael Hyatt told WorldNetDaily. “The great danger of a crisis like this is that procedures will be instituted that we’re promised will be temporary but will in fact become permanent.” About government’s desire for the new powers, Hyatt, author of “Invasion of Privacy” and host of MorePrivacy.com, said, “I don’t trust their record.”
Tuccille agrees, saying that emergency powers are “always justified as temporary, but once the emergency is over, new powers are rarely surrendered.” Some are given back, he said, but when you tally it up, “there’s always some loss of liberty.”
“Maybe the Senate wants to just go ahead and adopt new abilities to wiretap our citizens,” said Leahy. “Maybe they want to adopt new abilities to go into people’s computers. Maybe that will make us feel safer. Maybe. And maybe what the terrorists have done is made us a little bit less safe. Maybe they have increased Big Brother in this country.”
“We need to think very carefully about our democracy. If we take radical steps that undermine it,” Neumann noted, “we are essentially losing our moral edge.”
Tuccille sounded the same note: “The U.S. is the only nation founded on individual liberty, and the more we abandon that, the more we abandon what it means to be an American.”