In a recent editorial, “Chilling Effect? Or Permanent Freeze?” (Connecticut Law Tribune, Aug. 12, 2013), we described (our words) “a frightening, Orwellian climate of secrecy, snooping and overreaching by our government,” with particular reference to right to counsel, freedom of speech and of the press. Recent revelations based on the NSA/Snowden documents in The Guardian, The New York Times and ProPublica cause us to repeat our plea — with added urgency — that the legal profession take the lead on a national debate regarding the limits of the government’s power in the name of national security.
It is an inescapable fact that the capability of the government to snoop, eavesdrop and copy is virtually limitless. Worse, it appears to be metastasizing. We earlier noted the threat to press freedom caused by National Security Letters (NSLs) and the sweeping powers granted to law enforcement officials under the USA Patriot Act. We now know from the Snowden/NSA documents that the government’s capabilities go well beyond mere snooping, secret subpoenas and metadata mining of cell phones and landline phones. The government is now able to evade or crack encryption/digital scrambling, on a universal basis, virtually every existing system of global communication — commerce and banking, trade secrets, emails, internet chats and ordinary phone calls.
The National Security Agency has cracked communications of, among other things, foreign airlines, a travel reservation system and another government’s internal Internet traffic. Our government has done this with the willing complicity of the largest Internet service providers and telecommunication companies. Where compliance has not been voluntary, it has been obtained by secret court orders and subpoenas. At times, “compliance” has been realized simply by the government stealing encryption keys or tampering with equipment.
We have now learned that the NSA spends over $250 million a year on the “Signit” Project (an acronym for signal intelligence, which really means electronic surveillance). Signit “engages” (pays) domestic and foreign IT industries to enable the government to exploit communications. In short, our government pays IT firms to make it appear that communications are safely encrypted (wink, wink), all while the government is able to bypass the encryptions. The NSA has been able to compromise national and international organizations setting encryption standards in order to allow the planting of vulnerabilities of which only NSA is aware.
The NSA budget also provides for the government to enter into “partnerships” with major telecommunication carriers to shape the global network to benefit other collection opportunities. Our government is paying companies such as Google and Microsoft for pre-encryption access to numerous services such as Outlook, Skype and Gmail. If a company should refuse such a “request” by the government, company executives face fines or incarceration.
Stripped of the venire of IT codewords, it comes down to this: the government and NSA’s actions point toward a future when the government, above all others, determines what it will allow to be encrypted or decrypted. The NSA’s policies, and attempt to defeat, encrypting and decrypting communications which NSA does not control, at every level of commerce, government and the private sector.
The government’s Orwellian programs of snooping and eavesdropping, coupled with its relentless and apparently successful efforts in the private sector to encrypt and decrypt only what it chooses, is an overarching policy concern to the legal profession. How should we advise a client when served with a NSL requesting information on its own encryption tools? (One company, Lavabit, closed rather than provide customer information). What do we advise when a client is threatened with sanctions for disclosing the fact of encryption or decryption after being served with a NSL or subpoena? What do we tell a client in the encryption business when faced with a NSA demand for coding information, or lists of customers? At what point do our clients become agents of the government, whether willing or not?
We know where the executive branch stands on anything remotely includable under the ambit of “national security.” As previously urged in this space, the legal profession should lead the discussion on the limits of national security as against the rights of individuals and private commercial interests. Future legislation and regulations must be informed by rational and enlightened discussion. Our judicial branch must truly be a neutral arbitrator of national security disputes, and not a rubber stamp for the executive branch in secret court proceedings. Lawyers have a critical role to play in maintaining our original concepts of democracy.•