I am The Other.
No, not from Game of Thrones.
I mean I am the "other" contemptuously categorized by my government, a vast category of people with an interest in using encrypted communications to thwart my government's attempt to spy on me.
Yesterday documents revealed by Edward Snowden suggested the scope of the NSA's efforts — and successes — in defeating commercial encryption on the internet:
The agency has circumvented or cracked much of the encryption, or digital scrambling, that guards global commerce and banking systems, protects sensitive data like trade secrets and medical records, and automatically secures the e-mails, Web searches, Internet chats and phone calls of Americans and others around the world, the documents show.
People much smarter than I am suggest that the NSA hasn't, and very likely can't yet, break all crypto technology currently available to us, and that there are still methods of keeping our communications secure from spying by the Security State. I hope that my more technologically adept co-bloggers will expand on that point in this space in the near future, and will watch for discussions elsewhere.
The NSA's official response is to suggest that wanting to secure our communications from our surveillance is inherently suspicious and suggestive of criminal activity.
It should hardly be surprising that our intelligence agencies seek ways to counteract our adversaries’ use of encryption. Throughout history, nations have used encryption to protect their secrets, and today, terrorists, cybercriminals, human traffickers and others also use code to hide their activities. Our intelligence community would not be doing its job if we did not try to counter that. [emphasis added]
I am not — at least not yet — classified as a terrorist, cybercriminal, or human trafficker. So I suppose I am the "other." I want to learn to use strong crypto effectively, and encrypt my professional and personal communications from government spying.
I am the other because I do not trust my government in general, or the people working for its security apparatus in particular.
I am the other because I believe the Security State and its representatives habitually lie, both directly and by misleading language, about the scope of their spying on us. I believe they feel entitled to do so.
I am the other because I believe the Security State and its representatives habitually violate such modest restrictions as a complacent and compliant legislature puts on their spying — again, because they feel entitled to do so.
I am the other because I don't believe the Security State and its representatives when they say that government spying is reserved for foreign terrorists. In fact, the NSA's "minimization" techniques — touted as methods for restricting spying to foreign terrorists instead of U.S. citizens — are often transparently and insultingly ridiculous.
I am the other because I don't believe my government when it tries to convince us that enhanced spying techniques are used to protect us from terrorists. I believe, instead, that the increased powers acquired by my government since 9/11 have been habitually brought to bear for domestic purposes, including such things as the ruinous and amoral War on Drugs.
I am the other because I represent people accused of crimes by the government. Based on nearly 20 years experience in the criminal justice system, I believe my government and the people working for it are likely to (1) use national security apparatus to gather intelligence on defendants accused of domestic crimes, (2) pass that intelligence along to domestic prosecutors, and (3) lie about and conceal the source of the information or how it was transmitted. I know many individual prosecutors who, I believe, would not review and use intercepted attorney-client communications and conceal them from me. However, institutionally, I believe the United States government and many of its prosecutors are willing and able to do so.1
I am the other because I believe a free person needs no excuse whatsoever to keep communications secret from the government, whether those communications are weighty or frivolous. I am the other because I believe the mantra "what do you have to hide" is a contemptible and un-American sentiment that fundamentally misconstrues the proper relationship between citizen and state.
I am the other because I want to ask some fundamental questions about the Security State. Is the security the government says it is providing after 9/11 worth the vast increase in government power and the fundamental changes to our society? Would it be better to say back to the government "no thank you" and accept a higher risk of terrorist attack if it means not living in a society of entitled spies? Are the methods the government uses "necessary," in any use of that word? Will anyone thank us in one generation, or two, or ten, for accepting our role of the frog in the kettle, swimming placidly as the heat of the Security State gradually turns up? Thousands of Americans have fought and suffered and died to preserve freedom over our history — does it make sense to sacrifice freedom now because the state tells us people will die if we don't? How can free people interact with a government that demonstrates it is willing to lie and cheat to us about its intrusions on our privacy?
Let's have an ongoing discussion about crypto methods and whether, when, and how people should use them. I wonder: what if a substantial number of Americans started using strong crypto on a routine basis?
- And state prosecutors? Don't get me started. There are many of them who are also honest and honorable. But I remember the time that the San Bernardino County DA's Office directed a search that seized attorney-client communications from my client's home, and reviewed the communications. When I filed a motion for return of the communications — which should not have been seized, and should not have been reviewed — the DA earnestly explained his theory that, legally speaking, any attorney-client privilege had been "burst" when police seized the documents. ▲
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