Privacy Becomes A Feature

[ Posted Thursday, September 25th, 2014 – 16:22 UTC ]

There is big news from the Justice Department today, but I'm not talking about the announcement that Eric Holder will be stepping down as Attorney General (which I'll comment on tomorrow, most likely). Instead, the news comes from the head of the Federal Bureau of Investigations. James B. Comey is upset because Apple and Google have recently announced that they will be providing privacy -- via strong encryption -- as a feature in their personal computing products. Comey reached out to the companies to convince them to change their minds about their decision to, as he put it, "market something expressly to allow people to place themselves beyond the law."

My response to Comey is simple: Tough. That's the way the cookie crumbles, when government has been so proactive in vacuuming up every electronic signal they can from American citizens. Eventually, big businesses are going to realize that privacy is indeed a marketable feature -- even (and perhaps especially) privacy from government intrusion.

Comey is upset because the F.B.I. (and all other government agencies) won't be able to access data off a smartphone even when there is a legal warrant for that data. He thinks he has a point, which is why he used the "beyond the law" phrase in his statement.

My response does not change: Tough luck, Jim. Perhaps if the N.S.A. scandal had never happened, the populace (and electronics companies) might be more receptive to your pleas. But that well is already poisoned beyond redemption. The Fourth Amendment will be resuscitated not by those sworn to uphold the Constitution (such as Comey himself), but by corporations, for profit. So be it. The news article which broke the story points out what the new reality for police is soon going to become: "The result, say law enforcement officials, legal experts and forensic analysts, is that more and more seized smartphones will end up as little more than shiny paperweights, with potentially incriminating secrets locked inside forever."

You know what? I'm fine with that. I really am.

The Fourth Amendment was enshrined in the Bill of Rights for a reason. One of those reasons was the British use of "general warrants," which they used as an excuse to search anything, anywhere, at any time. In other words, what the N.S.A. has been doing for quite some time now. This was seen as governmental tyranny that needed permanent protection against in our founding document. For a reason.

What would the framers of the Bill of Rights have thought about an American citizen who chose to keep all his personal and business records in a cipher? This is not a question which involves time-travelling plotlines (as, say, the question: "What would the framers have thought of being searched to board an airplane?" would, since airplanes and even trains were unimaginably far in their future) -- because cryptology already existed in their world. Any fan of Dan Brown can tell you about Thomas Jefferson's cipher wheels -- such methods were not only known to civil libertarians of the age, they were actively used, one assumes.

So what would Jefferson have said about the government's ability to crack his cipher? Would he come down on Comey's side -- that the government should always hold the "keys" to any cipher citizens choose to use -- or would our third president have laughed at the very idea? I'd bet on Jefferson doubling up with howls of laughter, personally.

The government is allowed to seek data using a search warrant. That is the law. They are allowed to seize any data storage device named in such a warrant (be it papers, books, letters, writings, or more computerized forms of storage). They are free to try to unlock the data, if it is encrypted in any way. But they cannot force the owner of the data to help them unlock it (that's actually the Fifth Amendment, not the Fourth, I should mention in passing). If they fail to unlock it, well, tough luck.

With so much of modern life stored on computer data -- especially in those little computers in your pocket called "smartphones" -- it was inevitable (especially after the N.S.A. scandal broke) that companies would realize that privacy is a saleable commodity. Does this mean that wrongdoers will use this technology? Undoubtedly. But it also means that -- for a price -- any citizen can avail themselves of encryption to keep their data private even after their phone has been seized by a law enforcement officer. This is a good thing, not a bad thing.

Perhaps corporations and the citizenry would be more open to the arguments of law enforcement if trust in the government's actions were higher -- that is to say, if the government hadn't been so cavalier about warrants and private data for the past decade or so. From the article, here is a frustrated cop trying to make this case:

"Apple will become the phone of choice for the pedophile," said John J. Escalante, chief of detectives for Chicago's police department. "The average pedophile at this point is probably thinking, I've got to get an Apple phone."

This is not convincing, because while it may indeed be true, there is no inherent right for the police to be able to access any device a citizen might possess -- even after a warrant has been approved. It is not "beyond the law" for citizens to keep things private by any means at all.

For those who see this as a danger -- who agree with the cops that data should always be crackable by the police -- I would say that this doesn't limit law enforcement (especially the F.B.I. or other federal agencies) as much as you might think. Again, from the article:

Not all of the high-tech tools favored by police are in peril. They can still seek records of calls or texts from cellular carriers, eavesdrop on conversations and, based on the cell towers used, determine the general locations of suspects. Police can seek data backed up on remote cloud services, which increasingly keep backups of the data collected by smartphones. And the most sophisticated law enforcements agencies can deliver malicious software to phones capable of making them spy on users -- revealing locations and communications, and in some cases secretly activating cameras and microphones as well.

That doesn't exactly sound like law enforcement's hands are completely tied, does it? At least, until Apple or some other company develops strong enough encryption to thwart such practices. Which will also be legal, and which also will be cheered by average citizens interested in preserving their own freedom from governmental snooping, whether justified or not.

The future is clear: privacy is not a bug, it is a feature. And this trend is only going to grow, as more and more people demand better privacy from their electronics. To Comey and the rest of the pearl-clutchers, I say: Tough. You made this bed, now lie in it.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


6 Comments on “Privacy Becomes A Feature”

  1. [1] 
    Michale wrote:

    You know what? I'm fine with that. I really am.

    And if, by accessing such data, it is proven that it could have prevented another 9/11 or saved a kidnap victim from rape and death???

    That's the problem with such principles that involve other people??

    Is your personal privacy worth a million innocent lives??

    A thousand innocents??

    A hundred innocents??

    One innocent???

    THAT is the question that needs to be asked...

    And, more important.. Answered..


  2. [2] 
    Michale wrote:

    Wait a tic...

    I thought you Lefties SUPPORTED the guvment??

    And that it was those evil terrorist kidnapper arsonist Republicans that hated the guvment..

    What gives, eh???



  3. [3] 
    nypoet22 wrote:

    I thought you Lefties SUPPORTED the guvment??

    there are different types of government control, and various dimensions in which people believe that control should or should not be applied. lefty or liberal at least theoretically ought to refer to more permissiveness, while conservative or righty ought to refer to more central authority, but these distinctions have sort of been glossed over in our need for only two dichotomous poles.

    in reality, people have a wide spectrum of beliefs depending on whether government control extends to moral and social domains, as opposed to economic and material domains. And either of those categories can be further divided into sub-categories depending on the type of social or economic control, and the extent to which the people should have direct voting access to said government powers. in other words, it's complicated.


  4. [4] 
    Michale wrote:

    in other words, it's complicated.

    Oh I know... I was just being facetious to contrast and compare how many Weigantians ridicule the Right for being "against guvment"... :D

    But Right (AND Left) are for guvment when their guy is POTUS and against guvment when the other Party's guy is POTUS...



  5. [5] 
    nypoet22 wrote:

    typical human hypocrisy notwithstanding, there ARE different points of view about how much power a government should have over different domains of life.


  6. [6] 
    Michale wrote:

    there ARE different points of view about how much power a government should have over different domains of life.

    I completely agree...

    And each point of view deserves consideration and not out of hand dismissal based on whether one follows the '-D' god or the '-R' god....


Comments for this article are closed.