If you were thinking about employing encryption software to avoid the all-encompassing gaze of the NSA, think again. By seeking to preserve your privacy, you just make yourself a hapless lab rat in their running experiments:
Bad news for fans of anonymizing Tor networks, PGP and other encryption services: If you're attempting to avoid the National Security Agency's digital dragnet, you may be making yourself a target, as well as legally allowing the agency to retain your communications indefinitely -- and even use them to test the latest code-breaking tools.
Those revelations come via leaked documents that detail the operating guidelines for secret NSA surveillance programs authorized by Congress in 2008. Those documents include a one-page memorandum from a U.S. Foreign Intelligence Surveillance Court (FISA) judge, saying that the guidelines don't violate Fourth Amendment protections against unreasonable searches.
It gets worse. For those who seek to preserve their privacy by encrypting their communications, in effect shielding themselves from the ominipresent "Eye", the gloves come off and they can be declared non-U.S. citizens for purposes of sidestepping any pesky "Constitutional" restrictions:
When encryption is encountered, however, the gloves can come off, with analysts being allowed to retain "communications that are enciphered or reasonably believed to contain secret meaning" for any period of time. The guidelines allow this retention to occur not just for recovering the source communications but for any cryptanalysis use, suggesting that the NSA could retain encrypted communications to use as target practice for future code-breaking techniques.
Furthermore, as noted by Ars Technica, encryption may mask not only a person's identity, but also their physical location. Since the NSA guidelines say that a person "will not be treated as a United States person" without a positive identification based on name, address, electronic communication addresses or geographic location, encryption users may because classified -- at least temporarily -- as non-U.S. residents by NSA analysts.
So if you're not doing anything wrong, you have nothing to worry about, right? But we'll be the judge of that and God help you if you try to hide what you're doing, what you're saying, what you're thinking. We'll simply declare you a non-citizen.
What if they determine there's no way they can claim with a straight face that you're not an American citizen? Ars Technica has more, including this observation:
[I]n the event that an intercepted communication is later deemed to be from a US person, the requirement to promptly destroy the material may be suspended in a variety of circumstances. Among the exceptions are "communications that are enciphered or reasonably believed to contain secret meaning, and sufficient duration may consist of any period of time during which encrypted material is subject to, or of use in, cryptanalysis."
"Reasonably believed to contain secret meaning?" Would that cover an allusion? An analogy? A simile? A metaphor? Are these NSA snoopers all English majors, by any chance?
So just to sum up, if you choose to encrypt your "private" communications, you're automatically targeted and can have your Constitutional rights thrown out the window because of a self-serving technicality that's baked into NSA's protocols. Then when they find out you are an American citizen, they still get the right to scrutinize the content of your communication to determine whether it contains a hint of "secret meaning."
Feeling queasy yet?