Privacy

Blunder Road

How the Clinton administration aims to patrol the information superhighway.

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Forget about mapping your own route or setting your own speed limit on the information superhighway. And you might as well leave the Fuzzbuster at home. The Clinton administration has set up a police trap far more stealthy than any haunting the nation's asphalt freeways. In fact, you won't even know it when you're being pulled over.

In February, the administration officially adopted "Clipper Chip" technology that will make it possible for government agencies to read all coded telephone and computer communications. The Clipper Chip, technically known as the Key Escrow chip, allows users to encode telephone calls, safeguard e-mail, and scramble data stored on disk–things a growing number of computer users are doing to protect sensitive or confidential information. But it also features a "back door" through which the government can eavesdrop on encrypted communications. (See "Hide and Peek," November 1993.)

The administration can't legally force private manufacturers to make the Clipper Chip, but it is hoping that the federal government's massive buying power will nonetheless make it the de facto industry standard. If computer and telecommunications companies want any share of lucrative government sales, they'll have to incorporate the chip into their products. Similarly, the administration can't force private citizens and businesses to use the chip, so it'll do the next best thing: require companies doing business with the government to install it.

The administration sees the Clipper Chip as a complement to its attempt to prevent the sale of encryption software outside the United States. Even as it has eased export controls on some computer hardware, the White House has maintained rules classifying encryption programs as "munitions," which means they cannot be sold abroad without a special license. Where the attempt to keep encryption programs under lock and key has failed miserably, however, the Clipper Chip promises to succeed miserably–at eroding privacy rights, destroying the exchange of information, and decimating export sales of computer hardware and software. As Jerry Berman, executive director of the Electronic Frontier Foundation, told The New York Times, "The administration is preparing to implement a system that the public will not trust, that foreign countries will not buy, and that terrorists will overcome."

Although the administration maintains that any back-door access offered by the Clipper Chip will require a court order and the use of two digital keys kept by separate, still-to-be-determined federal agencies, past governmental abuses of less-sophisticated surveillance techniques undercut any guarantees of privacy. Perhaps that's why the official sales pitch for the Clipper Chip is such a hucksterish combination of soft soap and hard sell.

"Our policy is designed to provide better encryption to individuals and businesses while insuring that the needs of law enforcement and national security are met," says Al Gore, the administration's would-be master builder of the National Information Infrastructure, a.k.a. the information superhighway. The first half of Gore's statement is patently false. As far as the government is concerned, the problem isn't that individuals and businesses can't get better encryption programs. To the contrary, the problem is that the widely available existing programs are already too good for government snoops.

But, as the rest of Gore's statement indicates, the administration's real interest is in playing 21st-century traffic cop on the information superhighway. The costs of "insuring" the needs of law enforcement and national security are typically paid by selling off personal liberties. Despite a lack of evidence that the information highway is a hotbed of criminal activity–the best Gore can muster is that "encryption … can be used to avoid detection"–the administration is hoping that people will view the swap of privacy for "law and order" as an even-up trade.

If the administration's weak rationale for the plan and its blithe dismissals of privacy issues are somewhat frustrating, the origins and unknown uses of the Clipper Chip are downright disturbing. The chip, first proposed in April 1993, was developed by the National Security Agency, the inscrutable federal organization charged with monitoring communications around the world. The underlying technology was developed in secret, and its exact specifications remain classified. As a result, no one outside of the NSA can be sure what the chip is fully capable of.

And the NSA's character is plainly less than upstanding (the same could be said for most federal law-enforcement agencies). Congressional investigations in the 1970s brought to light a host of abuses, including the illegal interception of millions of cables sent by American citizens. Such overreaching seems to be a defining characteristic of the agency. In fact, the development of the Clipper Chip may well violate a 1987 law explicitly limiting the NSA's ability to set standards for the nation's communications networks.

Even if the NSA's role is not contrary to the letter of the law, it remains profoundly unsettling to see the Clinton administration embrace a technology as insidious as it is highly classified. One of the great achievements of the United States has been an unparalleled freedom of expression, not just between citizens and government but among private individuals. The Clipper Chip, with its potential for unlimited and undetectable eavesdropping, threatens the free flow of information that is the precondition of all democratic societies. Who can talk freely–or conduct business–with a third party listening in?

Once citizens cannot talk openly among themselves, they cannot speak openly in public, either. As George Orwell pointed out in 1984, the mere possibility of extensive governmental surveillance curtails individual liberty: "They could plug in your wire whenever they wanted to. You had to live–did live, from habit that became instinct–in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized."

We may take some solace in the fact that all surveillance technologies are ultimately inefficient. In the 1980s, for instance, when the North Korean government installed surveillance equipment in public places, it was stolen and turned into receivers capable of picking up broadcasts from outside the country. There is no reason to believe that the Clipper Chip will be totally effective–as with most government programs, it will probably only be costly and inefficient.

But the threat posed by the Clipper Chip should not be minimized. The chip's implementation remains a completely unjustified and unacceptable action on the part of a supposedly limited government whose legitimacy is derived from the consent of the governed. The Clinton administration has turned the information superhighway into a toll road whose price is simply too steep to pay.