At Least It’ll Be a Legal Surveillance State Now

A lot of people arguing against the National Security Agency’s (NSA) mass surveillance apparatus are doing so by pointing out its illegal nature. The Fourth Amendment and a bunch of other words of pieces of paper have been cited. It looks like our overlords in Washington DC have finally tired of hearing these arguments. They’re now using their monopoly on issuing decrees to make state spying totally legal in every regard:

Last night, the Senate passed an amended version of the intelligence reauthorization bill with a new Sec. 309—one the House never has considered. Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.

To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.

There you have it, all those arguments about NSA spying being illegal can finally be put to rest!

This is why I don’t hold out any hope for political solutions. So long as you rely on your rulers to define what is and isn’t legal you are forever at their mercy. And they are very interested in keeping you under their boots. But technical solutions exist that can render widespread spying, if not entirely impotent, prohibitively expensive. Many have pointed out to me that if you are targeted by the government you’re fucked no matter what. That is true. If the government wants you dead it’s well within its power to kill you. The task is not to save yourself if you are being targeted though. What cryptography tools do is keep you from being a target and raising the costs involved in pursuing you if you become a target.

It costs very little for agencies such as the NSA to slurp up and comb through unencrypted data. Encrypted data is another story. Even if the NSA has the ability to break the encryption it has no way of knowing what encrypted data is useful and what encrypted data is useless without breaking it first. And breaking encryption isn’t a zero cost game. Most people arguing that the NSA can break encryption use supercomputers as their plot device. Supercomputers aren’t cheap to operate. They take a lot of electricity. There are also the costs involved of hiring cryptanalysts capable of providing the knowledge necessary to break encryption. People with such a knowledge base aren’t cheap and you need them on hand at all times because encryption is constantly improving. The bottom line is that the more encrypted data there is the more resources the state has to invest into breaking it. Anonymity tools add another layer of difficulty because even if you decrypt anonymous data you can’t tie it to anybody.

Widespread use of cryptography makes widespread surveillance expensive because the only way to find anything is to crack everything. Political solutions are irrelevant because even if the rules of today make widespread surveillance illegal the rulers of tomorrow can reverse that decision.