Government Eavesdropping Via E-mail

by David Kopel and Duane Thompson

Rocky Mountain News, July 4, 1994

How would you feel if every time you bought a lock for your home, you had to give the federal government a spare key? Would you feel better if the government promised to use the key only occasionally? President Clinton has recently embarked on an ambitious plan to acquire everyone's spare keys - or at least their electronic spare keys.

Currently, folks who use computers to send electronic mail or store valuable information have powerful tools to protect their privacy. Using a technique called public-key encryption, computer users can keep their data private from someone who doesn't have the user's authorization. Computer users can even send electronic mail that can only be read by the intended recipient. However, the Clinton administration, which thinks that privacy is essential when abortion is involved, apparently can't stand the idea of computer privacy.

The federal government has begun requiring that all vendors supplying phones to the federal government include the "Clipper" chip, which provides a low level of privacy protection against casual snoopers. But the "key," which allows the private phone conversation, computer file, or electronic mail to be opened up by unauthorized third parties, will be held by the federal government.

The government promises it will keep the key guarded, and only use it to snoop when absolutely necessary. This is the same government that promised Social Security numbers would only be used to administer the Social Security system.

Technically, it will still be legal to buy telephones with genuine privacy protection. But the feds are doing everything possible to make sure that such products never reach the market.

The issue of computer privacy has important economic implications. Genuinely secure public-key encryption gives users the safety and convenience of electronic files plus the security features of paper envelopes and signatures. A good encryption program can authenticate the creator of an electronic document - just as a written signature authenticates (more or less) the creator of a paper document.

The Clinton administration's weak privacy protection (giving the federal government the ability to spy everywhere) means that confidential business secrets can be stolen by competitors who can bribe local or federal law enforcement officials into divulging the "secret" codes for breaking into private conversations and files.

To make matters worse, the FBI wants to make it illegal to manufacture telephones and other communications devices that are not easy to wiretap. The FBI proposal is presented as a way to preserve the status quo, since the phones that were in use in the 1960s (when the FBI got into the wiretapping business) were easy to tap.

The status quo in America, however, is that manufacturers have never been required to design their products to facilitate government snooping. It's legal for the government to search through somebody's garbage without a warrant; but there's nothing wrong with privacy-conscious people and businesses using paper shredders to defeat any potential garbage snooping. Likewise, while wiretaps may be legal, there should be no obligation of individuals or businesses to make wiretapping easy.

Wiretaps, by the way, are used almost entirely to ferret out victimless crimes such as gambling and drug offenses, and are hardly ever necessary to catch violent criminals. The White House has offered two rationales for the latest privacy destruction efforts. First, there are top-secret reasons why more wiretapping is important, and therefore the wiretapping plan shouldn't be subject to public debate. This feeble "trust us" excuse is no more persuasive coming from the Clinton White House than it was when Presidents Johnson and Nixon claimed "top-secret" necessity for increased spying.

The second rationale is that the government needs to spy on terrorists. But aren't terrorists going to use special encryption devices created by their sponsor governments?

The Clinton-FBI proposals have much less to do with controlling serious crime than with starting America down the slippery slope to a world in which advanced technology becomes not a tool of individual liberation but an instrument for ever-expanding governmental surveillance.

Duane Thompson is a research associate and Dave Kopel is research director with the Independence Institute, a free-market think tank in Golden.