In this picture taken Sept. 7, 2013, acitivists protest with posters during the demonstration in Berlin, Germany. German news weekly Der Spiegel reports Sunday Sept. 8, 2013 that the U.S. National Security Agency can access users' data on all major smartphones. The magazine cites internal documents from the NSA and its British counterpart GCHQ in which the agencies describe setting up dedicated teams to crack protective measures on iPhones, BlackBerry and Android devices. This data includes contacts, call lists, SMS traffic, notes and location data. (AP Photo/dpa,Rainer Jensen)
Updated: October 10, 2013 6:20AM
Twenty years ago, an unlikely coalition of Americans wary of government snooping — from Reagan Republicans to the ACLU to televangelists — thwarted an effort by the National Security Agency to install a “back door” into the encryption software that protects every email and online transaction.
The Clipper Chip, as this back door was called, would violate every American’s Fourth Amendment right to be free from government search and seizure, the critics argued, and kill our nation’s global technology edge. International business would be no more comfortable with the U.S. government being able to read its most private transactions and correspondence than if the snoopers were China or Russia.
So what did the NSA do next?
What it should not have done. Not without an honest reckoning with the American people. Not without clear and unambiguous authorization and oversight by Congress. Or is this really what Congress had in mind in 2001 when it enacted the Patriot Act, loosening restrictions on law enforcement agencies to gather intelligence within the United States?
According to news reports last week, the NSA publicly gave up on trying to install the Clipper Chip into every encryption program, but secretly kept right on with its efforts to be able to read everything and anything transmitted online, from bank records to medical records to corporate top secrets. As part of an escalation of government spying that began after the Sept. 11, 2001, terrorist attacks, the New York Times reports, the NSA spent billions of dollars to defeat or bypass encryption.
According to the Times — as well as ProPublica and the Guardian — the NSA encouraged or coerced companies to install back doors in encryption software and hardware and built supercomputers to break codes. The NSA made major progress in breaking the encryption commonly used in everyday transactions on the Web, such as the virtual private networks used by many businesses including the Chicago Sun-Times.
Previous media reports on NSA snooping — based, as they are again this time, on documents disclosed by former NSA contractor Edward J. Snowden — revealed the NSA’s wholesale tracking of Americans’ cellphone calls — who is calling whom, where from and when. The latest revelations include no evidence that the NSA is actually reading private emails or other private online content, only that it is doing everything possible to have the ability, at will, to do so.
We’ve said it before and we’ll say it again — because new evidence of NSA spying on ordinary Americans keeps popping up — we have little doubt that such surveillance programs are aimed simply at protecting Americans. And we can buy the argument made by the NSA that rival nations, such as China and Russia, are engaged in the same sophisticated “cyberespionage” and the United States cannot risk falling behind.
But the United States is a democracy. China is not, and Russia can’t make up its mind. In a democracy, any sacrifice of individual liberties on the altar of national security must receive the blessing of the people. No high priest, let alone a bunch of moles at the NSA, should be making that call.
On Friday, Rep. Rush D. Holt, a New Jersey Democrat, proposed legislation that would entirely prohibit the NSA from installing “back doors” into encryption programs, which may be an overreach in itself. A thorough public debate of the matter, we suspect, would result in a more nuanced, less black-and-white set of well-supervised rules on cyberespionage.
But for that very reason, we welcome Rep. Holt’s proposal and the vigorous debate in Congress we would hope it prompts. Everybody needs a boss, including the NSA, no matter how secretive it insists it must be.
The American people, through their elected representatives, are that boss.