A History of Secrecy in Communications

by Colin Berkshire

Colin here.

In light of the recent PRISM scandal where the NSA has been revealed of intercepting and recording most communications on the internet, it is interesting to take an historical perspective. Here are some milestones:

    • 1928: Supreme Court rules that wiretapping not unconstitutional.
    •  1934: FCC prohibits wiretapping.
    •  1967: Supreme court rules that wiretapping without a court order is a violation of the fourth amendment
    •  1986: Electronic Communications Privacy Act extends certain 1968 restrictions on wiretapping to all forms of electronic communications.
    •  1994: Communications Assistance for Law Enforcement act requires all telecommunications equipment to have built-in government interception capabilities.
    •  2001: Secret wiretapping and wholesale harvesting of the internet authorized.

Until the mid 1990s the complete emphasis was upon protecting the secrecy of private electronic communications. Since then, the emphasis has been upon accommodating mass surveillance of all communications.

Contrary to popular thinking, it was not 2001 that reversed the trend of valuing privacy. It was a more subtle trend that started in the 1990s. What seems like a sudden and unexpected policy shift in 2001 was more likely simply taking advantage of the events of 2001, since the trend was already underway by then.

As you may recall, legislation was swiftly passed following the 2001 events. The legislation was enormous in size. Drafting legislation is a time consuming and arduous process. I have numerous friends who are lobbyists and they confirm that it would have been impossible to begin drafting the Patriot Act language after the 2001 events and have it ready for swift passage.

So, what clearly happened was the legislation was drafted well before 2001. When the events of 2001 were passed it is likely that this presented an opportunity to scour lobbyists for pro-monitoring legislation that was ready. This was probably all bundled up into a package that was then named the Patriot Act and was swiftly passed. That is how things work. So, the 2001 events were “opportune.”

This historical perspective is important because it shows how something as fundamental as telecommunications can move full swing in regulatory philosophy. From the belief that nothing was so protected as private communications to the belief that no communications should be considered private is a major shift in thinking.

The sheer number of wiretaps has mushroomed.

In the late 1970s one man headed a very small department that processed all AT&T wiretaps. That tiny department handled the few that came through each week. Upon his retirement from AT&T in the 1980s he retired to Sicily, Italy. (Really.) You can do that math.

Today, it is a legal requirement under CALA that telecommunications equipment have the ability to simultaneously wiretap no fewer than all connections. Every VOIP device, every Central Office, every carrier must meet those requirements. One of the reasons for the swift retirement of electromechanical Central Offices was that they could not handle this volume of wiretapping.

Today, we live in a world where there is nothing that is private. All of our phone calls are recorded. All of our emails are recorded. Everything is saved.

I have often wondered if a pet rat kept in a cage is happier than one living in the wild. Certainly the pet rat is better fed, cleaner, and less stressed than the one in the wild. But why is it that the ones in the wild don’t work to get into cages, and why do the ones within the comfortable cages spend all of their time trying to get out? It may be nothing more than that the rat fundamentally understands that when their “owner” is through with them their will have a most horrible death. Today, we people are in very safe, very comfortable cages. I think the analogy with pet rats holds true a bit for human nature.