Internet Eavesdropping: A Brave New World of Wiretapping

by Harry Campbell

As telephone conversations have moved to the Internet, so have those who want to listen in. But the technology needed to do so would entail a dangerous expansion of the government’s surveillance powers.

Federal agencies want Internet companies to comply with the same wiretapping requirements that apply to telecommunications carriers. This proposal, though, may stifle Internet innovation.      Furthermore, the new surveillance facilities might be misused by overzealous government officials or hijacked by terrorists or spies interested in monitoring U.S. communications.

Scientific American | August, 2008

By Whitfield Diffie and Susan Landau

As long as people have engaged in private conversations, eavesdroppers have tried to listen in. When important matters were discussed in parlors, people slipped in under the eaves—literally within the “eaves drop”—to hear what was being said. When conversations moved to telephones, the wires were tapped. And now that so much human activity takes place in cyberspace, spies have infiltrated that realm as well.

Unlike earlier, physical frontiers, cyberspace is a human construct. The rules, designs and investments we make in cyberspace will shape the ways espionage, privacy and security will interact. Today there is a clear movement to give intelligence activities a privileged position, building in the capacity of authorities to intercept cyberspace communications. The advantages of this trend for fighting crime and terrorism are obvious.

The drawbacks may be less obvious. For one thing, adding such intercept infrastructure would undermine the nimble, bottom-up structure of the Internet threaten the nation’s role as a leader and innovator in communications.

Furthermore, by putting too much emphasis on the capacity to intercept Internet communications, we may be undermining civil liberties. We may also damage the security of cyberspace and ultimately the security of the nation. If the U.S. builds extensive wiretapping into our communications system, how do we guarantee that the facilities we build will not be misused? Our police and intelligence agencies, through corruption or merely excessive zeal, may use them to spy on Americans in violation of the U.S. Constitution. And, with any intercept capability, there is a risk that it could fall into the wrong hands.

Criminals, terrorists and foreign intelligence services may gain access to our surveillance facilities and use them against us. The architectures needed to protect against these two threats are different.

Such issues are important enough to merit a broad national debate. Unfortunately, though, the public’s ability to participate in the discussion is impeded by the fog of secrecy that surrounds all intelligence, particularly message interception (“signals intelligence”).

A Brief History of Wiretapping

To understand the current controversy over wiretapping, one must understand the history of communications technology. From the development of the telephone in the 19th century until the past decade or two, remote voice communications were carried almost exclusively by circuit-switched systems.

When one person picked up the phone to call another, one or more telephone switches along the way would connect their wires so that a continuous circuit would be formed. This circuit would persist for the duration of the call, after which the switches would disconnect the wires, freeing resources to handle other calls. Call switching was essentially the only thing that telephone switches did. Other services associated with the telephone—call forwarding and message taking, for example—were handled by human operators.

Wiretapping has had an on-and-off legal history in the U.S. The earliest wiretaps were simply extra wires—connected to the line between the telephone company’s central office and the subscriber—that carried the signal to a pair of earphones and a recorder. Later on, wiretaps were installed at the central office on the frames that held the incoming wires. At first, the courts held that a wiretap does not constitute a search when it involves no trespass, but over time that viewpoint changed. In 1967 the U.S. Supreme Court decided in the case of Katz v. United States that the interception of communications is indeed a search and that a warrant is required. This decision prompted Congress in 1968 to pass a law providing for wiretap warrants in criminal investigations. But Congress’s action left the use of wiretapping for foreign intelligence in legal limbo. Congressional investigations that followed the 1972 Watergate break-in uncovered a history of presidential operations that had employed and, as it turned out, abused the practice, spying on peaceful, domestic political organizations as well as hostile, foreign ones. So, in 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which took the controversial step of creating a secret federal court for issuing wiretap warrants.