Past surveillance programs could predict Prism's path


Past controversial electronic surveillance efforts by intelligence and law enforcement agencies could mark the way forward for the National Security Agency's recently disclosed gathering of meta-data from phone and Internet traffic, say privacy and communications experts.

There was NSA's Clipper Chip in the early 1990s, for example, which sought to give the government back-door access to the public's encrypted electronic messages via classified algorithms. The Federal Bureau of Investigation's Carnivore packet-sniffing technology for public telephone networks, introduced later that decade, allowed law enforcement to surreptitiously surf the web along with a criminal suspect. And the 1994 Communications and Law Enforcement Assistance Act (CALEA) instructed telecommunications carriers to provide digital wiretapping capabilities to law enforcement.

Each of these programs, as well as other of the years, generated initial public outrage when they began. Once revealed, however, more open, public debate ultimately shaped their fate. Transparency in the adoption process, say privacy and communications experts, is critical to the future of the federal government's surveillance capabilities.

"Public debate is essential to these programs," said Mike Jaycox, policy analyst at the privacy advocacy group, the Electronic Frontier Foundation. "We saw it in the '50s and '60s when mass domestic spying was uncovered and we must see it again in the 2010s."

"If NSA were more upfront, people would be a lot more comfortable," said Michael Nelson, senior technology and telecommunications analyst at Bloomberg Government. Nelson, who has worked at the White House as a science advisor, as a technology analyst at the Federal Communications Commission and as part of President Obama's campaign team, said the debate over surveillance technology faces a basic, nagging problem. "There is fundamental tension between consumers who want privacy and vendors who want to know everything about them." In simple terms, government agencies can be likened to vendors, he said, driven by similar motives of providing service to the public. In the case of the NSA, he said, that service is safety.

Lawmakers and private industry alike are calling for a more honest, open exchange in the wake of the disclosure of the two NSA programs.

Internet technology companies that have supplied the government with information on their users to fuel intelligence agencies' Foreign Intelligence Surveillance Court (FISA) surveillance requests have begun pushing for more openness from the NSA. The companies, which include Google, Microsoft and Facebook, say they are being unfairly implicated as accomplices in privacy violations. Google sent a letter on June 10 to FBI director Robert Mueller and U.S. attorney general Eric Holder asking them to allow the company to explain more publicly how the NSA's requests for information about users are handled. The letter sought to allow wider release of the numbers of national security requests the company received and how many it fulfilled.

On June 11, a group of eight senators, including Sen. Patrick Leahy, (D-Vt.) chairman of the Senate Judiciary Committee, introduced a bill that would make the U.S. attorney general declassify FISA rulings. "There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies," Sen. Jeff Merkley (D-Or.), one of the bill's sponsors, said in a June 11 statement. "We can't have a serious debate about how much surveillance of Americans' communications should be permitted without ending secret law."

In the past, public outcry over web surveillance and wiretap efforts have produced tighter control, or at least an increase in circumspection about some of the government's surveillance technologies. For instance, the later version of the FBI's controversial 1990's Carnivore email surveillance device was renamed to a more innocuous "DCS-1000," before it was apparently abandoned by the agency in 2001 in favor of commercial technology. Privacy groups had pushed the FBI to release thousands of pages of information on the technology through Freedom of Information Act requests that detailed exactly how the technology operated. Updates to CALEA wiretap capabilities incorporated input from a wide range of dissenting parties, including privacy rights groups, telecommunications carriers and the public. Currently, proposals to expand the law to include voice over Internet protocol (VoIP) services and other peer-to-peer tools are under discussion in government and industry.

The effectiveness of NSA's Clipper Chip was ultimately blunted in the mid-1990s by private companies offering strong cryptographic alternatives and a publicly disclosed flaw in the Clipper Chip's design. Ultimately, however, ideas about privacy rights and the nature of data are themselves shifting, reshaping the entire notion of surveillance. "Thirteen year olds with iPhones probably have very different expectations of privacy" than most older people, said Nelson. Younger people may be more comfortable with giving up some of their privacy when using technology.

A recent poll by the Washington Post and the Pew Research Center showed that 56 percent of Americans believed court orders that allow the government to track their phone calls are acceptable.

Nelson said developing a "mutually-assured disclosure" approach by the government might be more productive than secrecy. "Stop arguing and add transparency about the process." In doing so, he said, the government should show the benefit of its monitoring, like a possibly safer world, in exchange for Americans disclosing some of their data.

About the Author

Mark Rockwell is a senior staff writer at FCW, whose beat focuses on acquisition, the Department of Homeland Security and the Department of Energy.

Before joining FCW, Rockwell was Washington correspondent for Government Security News, where he covered all aspects of homeland security from IT to detection dogs and border security. Over the last 25 years in Washington as a reporter, editor and correspondent, he has covered an increasingly wide array of high-tech issues for publications like Communications Week, Internet Week, Fiber Optics News, magazine and Wireless Week.

Rockwell received a Jesse H. Neal Award for his work covering telecommunications issues, and is a graduate of James Madison University.

Click here for previous articles by Rockwell. Contact him at or follow him on Twitter at @MRockwell4.

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Reader comments

Tue, Jun 18, 2013

These concerns will not, "be addressed to the satisfaction of the people". This administration seriously appears to have "risen above" the people and will do what it wants. And there is a large minority of the population that accept whatever the president and his agencies say. I mean, wow! I read more and more where people are afraid of what the govts intentions are. I don't get the sense the administration really cares what the people want. Remember the old saying, when the govt fear the people that is liberty but when the people fear the govt, that is tyranny. Ask yourself, who is afraid of who these days? I don't get the sense the govt has any fear of the public or its outrage over all these really creepy events (IRS, NSA, etc.).

Tue, Jun 18, 2013

So did Holder and Mueller grant Google's request? If not, we know where the secrecy and witholding of information comes from, tha current administration.

Thu, Jun 13, 2013

There would be a lot more comfort with the NSA's technology if such technology didn't also offer the current, or a future administration, the ability to utilize the technology for political and/or monetary advantage. The recent use of the IRS as a political tool is a perfect example of why there is reason for concern. When the IRS' actions are combined with questionable surveillance actions aimed at members of the press and the multiple cases of dishonest/misleading testimony by persons of authority when appearing before Congress, it's no wonder there are people with concerns about the level of intrusion by the NSA and the potential for abuse of that power in the future. Anyone who is situationally aware and capable of reasoned thought has reason for concern. Those concerns need to be addressed to the satisfaction of the people.

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