NSA: We Can Keep Your Encrypted Communications Indefinitely

LOS ANGELES—It might be a good time to revisit Ray Bradbury’s 1951 short story, The Pedestrian, about a future in which people no longer enjoy long walks through their neighborhoods but instead stay home and watch television. The protagonist, Leonard Mead, prefers to take meandering evening strolls through the empty streets around his house, until the night he is stopped by a robotic police car that becomes suspicious of him for taking a walk for no reason, and transports him to the Psychiatric Center for Research on Regressive Tendencies. Digitally speaking, that time is now. Released National Security Agency (NSA) documents reveal that the use of privacy (and maybe even common encryption) tools is enough reason for the government to retain the encrypted data until it is decrypted. The program further assumes that the owner of encrypted files is not a United States citizen until proven otherwise. Data, in this situation, includes communications gathered for “cryptanalytic, traffic analysis, or signal exploitation purposes.” According to the leaked “minimization procedures,” which describe the supposed boundaries of NSA surveillance of Americans, “Such communications can be retained for a period sufficient to allow thorough exploitation and to permit access to data that are, or are reasonably believed likely to become, relevant to a future foreign intelligence requirement.” Kevin Bankston, a director of the Free Expression Project at the Center for Democracy and Technology, described the status quo. “Basically we’re in a situation where, if the NSA’s filters for distinguishing between domestic and foreign information stink, it gives them carte blanche to review those communications for evidence of crimes that are unrelated to espionage and terrorism,” he said, adding, “If they don’t know where you are, they assume you’re not a U.S. person. The default is that your communications are unprotected.” Neither does the NSA program care why a person wants to encrypt files or stay anonymous on the web. A vast majority of people who use privacy tools are obviously not terrorists; most probably just want to avoid being tracked by ad networks. Private industry, after all, is as or more fully vested as government in the 24/7 surveillance society, as shown by a 2012 article by DigiTrends analyzing the escalating use of data tracking by the world’s “Top 100 Websites,” including several adult tube sites.) But the NSA can’t see into your mind to know why you want to take anonymous walks online, share files anonymously or even send banking data by encryption, which means they now feel the need to take and store your stuff until they can figure out if you’re okay to go. It’s the virtual version of being hauled off to the Psychiatric Center for Research on Regressive Tendencies. It’s better than actually being taken to the place, no doubt, but who’s to say the digital seizure isn’t just a metaphoric precursor to the real thing? Even if it isn’t, though, everyone is still faced with a miserable choice. As Forbes put it, “Fail to encrypt your communications… they’re vulnerable to any eavesdropper’s surveillance. But encrypt them, and they become legally subject to eavesdropping by the most powerful surveillance agency in the world.” That’s what we call a legally sanctioned, non-consensual double penetration.