Use of Tor and e-mail crypto could increase chances that NSA keeps your data | Ars Technica
Update: For the point of view that all is well, except for the fact of the leaks, see Stewart Baker, But Enough About You …. Note that to read this post in its true context you need to understand what it means for the NSA to decide a post might be foreign in some way. A good place to start might be Ed Felton’s 51% foreign test doesn’t protect Americans.
First, if one did not actually think that it was POSSIBLE that the NSA could intercept and even read what they now have admitted they can, then one simply has no idea how anything in the world actually works. Of course they can – and have been able to for years. This was not a mystery and I don’t think any actual secret is revealed by NSA admitting it or leaked/disclosed documents.
What is important in this story has to do with Government claiming the RIGHT to do this against American citizens without Constitution protections that are verifiably in place. The argument for Government seems to be two-fold: We need to do this to fight terrorists. We need to do this because our enemies can.
And obviously, you can’t put the digital genie back in the bottle. The technology exists so you can’t really just ignore it like it’s still 1970.
But in all of the national indignation about Snowden, nobody seems to be making the serious argument about the Fourth Amendment implications in all this. Is it a search to intercept if you don’t read? And if you read later, does that mean you really needed the warrant when you intercepted? And how is this different from a secret warrantless police search in which evidence is left in place but forms at some level a later justification to achieve a warrant to go back and get it legally? And where does a “reasonable expectation of privacy” actually apply to our digital lives? On my personal hard drive? And if so, to my cloud hard drive? Email? And to the point of your post, if encrypt my email, does that mean that I have expressed my expectation of privacy – meaning that Government giving it extra scrutiny might have extra Constitutional issues? And if I, as a Federal criminal defendant, know that exculpatory evidence lies in data that NSA should have, does a Federal prosecutor have a Constitutional, if not ethical, duty to disclose it?
All of these are open issues which have not really been seriously, wholistically, and comprehensively addressed by Politicians or the Courts.
In my opinion, people should start using encryption on a regular basis for every-day things. Email should always have been encrypted. GnuPG (what I use) is easy enough for anyone to use on any platform, and people should do so starting now. If nothing else, it would tell our Government that it’s NOT simply up to them to decide how they want to spy on us, even for our own good.
Unfortunately, too many people have taken the position that if you aren’t doing anything wrong, you have nothing to fear from letting Government do whatever it can rationally justify. was a militarized police force enforcing a governmental closure of Boston Constitutional? Would it have been Constitutional if a citizen of Boston decided to take a walk during the search? Refuse to allow a home search without a probably cause warrant? DID anyone?
(And although we could never know for sure unless NSA admits it, there are very, very good reasons to believe that NSA cannot currently or in the foreseeable future crack 2048bit encryption, and even if it turns out they can at some point, it’s a simple change to up the ante again. )