From: Zhahai.Stewart@f93.n104.z1.fidonet.org (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Re: Registered Keys - why the need?
Date: Thu, 05 Nov 92 13:40:14 PDT
Organization: FidoNet node 1:104/93 - Adelante, Boulder CO

 d> The word "crisis" is probably too strong.  But let me elaborate on the 
 d> effect of COURT-AUTHORIZED taps.  According to the FBI, they have been
 d> essential in preventing serious criminal activity including organized 
 d> crime, drug trafficking, extortion, terrorism, kidnaping, and murder.  
 d> During the period 1985-1991, court-ordered electronic surveillance 
 d> conducted by the FBI alone led to 7,324 convictions, almost $300 
 d> million in fines being levied, over $750 million in recoveries, 
 d> restitutions, and court-ordered forfeitures, and close to $2 billion in 
 d> prevented potential economic loss.  

 It was unclear whether the above figures (and several paragraphs which
 followed) are for all forms of electronic surveillance or just from 
 "COURT-AUTHORIZED taps".  It would not seem appropriate argumentation 
 to confuse the two, since encryption issues do not apply to many forms
 of electronic surveillance.

 Also, your figures are all from the law enforcement lobby itself, 
 presented in justification or self-congratuations.  We have seen a 
 long history of law enforcement exaggerations (cf. effectiveness of 
 the drug wars).  Do you have any substantial amount of evidence 
 *independent* of self-interested figures presented by the FBI and
 similar groups?  I believe it would be only prudent to take the 
 PR pronouncements of a polarized partisan on a given issue with a grain
 of salt, which seasoning I could not find anywhere in your extensive
 reprinting of their arguments.  I suspect a bit of critical perspective
 would aid your arguments.  Indeed you may be exercising this judgement
 via silently omitting some law enforcement arguments which you deem
 unjustified or unverified, but if so you have not made that clear.
 The appearance is of taking law enforcement statistics unquestioningly.

 I would hope for a more independent analysis; I can get the FBI's
 position and arguments directly from them.

 d> According to the 1986 President's 
 d> Commission on Organized Crime, OC reduces the output of the U.S. 
 d> economy by $18.2 billion a year (1986 dollars), cost 414,000 jobs, 
 d> raise consumer prices by 0.3%, and lower per capita personal income by 
 d> $77.22.  

 That I do find interesting.  It provides some fragmentary benchmark for
 some of the cost side of the equation.  Any reasonable observer will know
 that privacy and all other individual freedoms have some cost as well as
 some benefit.  Is privacy worth $10 per year, $77.22, $500?  That is an
 individual decision, of course.  However, these figures may give some
 folks at least some order of magnitude idea of the "down side" of 
 privacy.  I think some folks would consider this a good bargain.
 
 d> The average cost of a wiretap in 1991 was $45K.  Most of this goes 
 d> to labor.  Those of you who think that law enforcers are likely to 
 d> start tapping everyone with or without a warrant need to do a reality 
 d> check on cost and government budgets.  Assuming there
 d> are about 100 million lines, the total cost to listen in on them
 d> all would be $4.5 trillion!

 I accept the premise that costs are one of the restraining factors, but
 I believe that there are two problems with this line of argumentation.
 One is that the cost to the FBI could go down dramatically if the FBI's
 universal wiretapping proposal were to pass (requiring that industry
 itself pay for building and installing a universal remote wiretapping
 facility which could be accessed by the FBI from the comfort of their
 own offices).  So your cost figures are for an old technology, and
 may apply very poorly to a new.  Computerized text can be scanned at
 many orders of magnitude less cost than manual document reading, and
 as more and more communication becomes digitised data (as opposed to
 purely voice), this will affect the cost ratios.  Even voice, it is
 beginning to appear, may become somewhat more easily scanned with 
 newer technology; gone are the days when a guy with headphones and
 a reel to reel tape recorder has to sit through every stutter.  Of
 course, some of the fancier developments may not arrive for a couple
 of decades; but it is unlikely that we will remove any government
 privileges at that time, just because the technology has made wider
 monitoring more affordable.  Whatever we give up now in terms of
 electronic privacy is likely to never return.  If you can give
 counterexamples to this, I would be interested.

 The second problem is that few folks would expect the FBI or local 
 police to continuously monitor every "conversation".  That I believe
 is a strawman argument, created by the opponent for the sole purpose
 of being easily shot down.  Myself, I would be dismayed by even a ten
 fold increase in police surveillance of citizens (absent a 
 corresponding tenfold increase in real crime), much less 100-fold, or 
 the 10,000 fold increase you use for agrumentum ad adsurdum.

 The real concerns are multiple.  One is a dramatic increase in 
 selective interception.  Given the FBI's history in regard to harassment
 of Central American activists in the 80s, and Co-intelpro in the 60's
 and 70's, it would seem rather generous or uninformed to believe that
 their selection process will not (in the decades after such a massive 
 system was installed) come to focus again on the political as well as 
 the truly criminal.  One of the restraining factors has been that
 tapping old analog phone left traces, and required the cooperation of
 more people who might not remain silent if the proper boundaries were
 overstepped.  I believe these factors may be substantially reduced in
 some of the newer proposals.

 Another is the question of effective court supervision.  While it is
 true that it is hard to use illegal wiretaps in court, that has not
 prevented use of illegal wiretaps in gathering background evidence.
 Or to support harassment, per the FBI and Martin Luther King.  The
 FBI has been implicated in a number of apparently warrentless breakins;
 the system of the courts has not been able prosecute this.  In this
 historical light, any major new system to enable FBI (or other law
 enforcement or national security) intrusions into privacy would need
 to have similarly major new safeguards.  I have not seen such new and
 better safeguards proposed as part and parcel of the extensions.

 In particular, a proposal to require all keys to be pre-registered with
 some "trustworthy" government agency takes the matter to entirely new
 lengths, beyond merely "maintaining the status quo".  It is this 
 proposal which has stirred up the most concern of all, I believe.
 I realize that this is not an official government proposal at this time,
 tho they might adopt it if there is no protest.  And I realise that
 it was made with earnest desire to find a workable compromise between
 the legitimate needs of law enforcement and personal privacy, neither
 of which is absolute.  Nevertheless, I find it surprising that anyone
 with knowledge of current history could even propose this type of 
 "compromise" without more awareness of the potentials for abuse, and
 the resulting predictable reaction from the community of computer users 
 who are concerned with these issues.
 
 Well, I and others here have probably been educated by the technical
 expertise you have shared with the world in the past; perhaps you will
 in turn be educated by the knowledge that others have gathered in their
 differing paths through the world.  Hopefully the synthesis will be
 some proposal which better balances the legitimate concerns of privacy
 with those of law enforcement.

 d> Are there other approaches that would give you greater assurance 
 d> against the government and still allow for meeting the legitimate 
 d> needs of law enforcement?  If so, I'd love to hear them.

 I am not sure whether this will happen or not.  I hope so.  But let me
 explain why this is not a given.  Voice line tapping required almost 
 no artificial limitations, restrictions, or registrations to be imposed
 on the hundreds of millions of ordinary citizens using the telephones;
 thus the inherent tradeoffs were relatively easy.  It was not even
 neccessary to outlaw all analog voice scramblers, because most were 
 easily enough unscrambled by law enforcement.  This is no longer the
 case with encryption and digital telephony.  Suddenly, it will become
 easily possible for anyone (criminal or not) to essentially protect
 the privacy of their communications.  This applies even more strongly
 to computer data communications.  Maintaining "parity" on the side of
 law enforcement may require much more intrusion, and more Draconian
 enforcement, than was required for analog wiretaps.  Given this change
 in the level of intrusion, it is NOT a given that law enforcement must
 be given the same degree of capability, no matter how much larger the
 other side of the tradeoff grows.  That is, not unless one is of the
 opinion that law enforcement's needs are absolute, while citizen 
 privacy is a disposable quantity - that is, not a matter of a reasonable
 tradeoff, but an absolute mandate for the government.  Luckily, many
 people do not subscribe to the absolute mandate theory.  Instead, they
 believe that any intrusive power given to the government must be balanced
 against the cost, and if the cost goes up, the power granted may have
 to go down.  Except in a police state, where the tradeoff is always
 weighted on the side of the government.

 Let me restate that clearly: if maintaining the same level of ability
 for law enforcement to intrude on privacy in the face of new technology
 can only be done at the cost of substantially greated authoritarian
 measures depriving honest citizens of privacy or other rights, then it
 may be neccessary for law enforcement to compromise as well, rather than
 assuming that all the compromise must naturally come on the side of loss
 of individual rights.  This may be unfortunate in some cases; but every
 limitation of government authority can be shown to be unfortunate in 
 some cases: sometimes waiting for a warrant loses evidence, and sometimes
 torture could solve cases more effectively.  A balance is neccessary.
 It is not a balance to assert that every time the technology changes the
 government's side will gain or at least never lose ground, no matter the
 cost in individual rights; that has a racheting effect towards the 
 government.  

 Before there were telephones, there was no wiretap available to law
 enforcement.  Wiretaps were an addition to the tools with which they
 were equipped, made possible by technology.  Sometimes further 
 developments in technology will help law enforcement, sometimes it
 will help individual rights.  Unless law enforcement convinces us
 that their "rights" are absolute, and ours are compromisable.

 I believe that you are seeking a reasoned tradeoff.  I fear that you
 might have accepted with insufficient question the law enforcement
 position that their "rights" must be maintained at no less than current
 levels, even if that means a substantial increase in intrusion against
 citizens in the process.  That is, only one side is being asked to 
 "compromise" - the citizens.  A quarter billion citizens being forced
 by law not to use technology at their fingertips just because it might
 make 7000 prosecutions harder is an awfully big tradeoff, and is far
 beyond the tradeoff previously agreed to (tacitly) in regard to analog
 wiretaps.

 Sincerely, Zhahai Stewart


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