Dell Cameron, Gizmodo:
Never in the past century has the FBI ever had greater access to consumer data than it does today. It has never been easier to locate a person of interest — be it a terrorist, a counterfeiter, or a child predator. The quickening pace of technology has given rise to new forms of surveillance, the likes of which, two decades ago, no federal agent would’ve ever thought possible.
Yet, for years now, the FBI has argued just the opposite, painting for the American public a picture of its agents fumbling around in the shadows without a flashlight, hindered by privacy-enhancing consumer technology, helping countless criminal suspects and terrorists evade arrest. Despite a steady year-to-year increase in search warrants, subpoenas, and National Security Letters served on technology companies, the bureau assures us that its investigations are “Going Dark.”
Cameron makes good counterarguments against FBI Director Christopher Wray’s complaints today that the FBI has been unable to decrypt nearly 7,000 devices, but I think he missed one critical argument: a fundamental right to privacy.
Rewind twenty years and ask average American adults whether they would be comfortable wearing a device everywhere that allows the government to know where they are, who they’re talking to, what they watch, and what they buy. I bet nobody would willingly agree to that. In fact, if you asked that of someone today, I doubt anyone would oblige; it’s only because we are under the impression that our cellphones are relatively private spaces that we use them the way we do.
The problem is not that the FBI and other law enforcement agencies cannot read the data on our devices; the problem, for them, is that they cannot interpret this data. When we write a letter, we are under no obligation to add enough context to that letter to make it intelligible to an FBI agent. We are not obligated to write our letters in a language they can understand, nor are we obligated to ensure that the letter isn’t protected by a cypher. An average person probably will not encode their mailed correspondence, of course, but there is nothing to prevent them from doing so if it is not connected to a crime.
Suppose letters had to be written in English, and could not be encoded; if they were in any other language or happened to be encoded, imagine you had to send a translation dictionary or a copy of the cypher to your local FBI field office. Now imagine that instead of a letter, it’s the key to every webpage you visit, instant message you send, transaction you make, and location you visit. And imagine that, instead of this information being in the hands of the FBI, it’s in the hands of every law enforcement agency in the Five Eyes alliance at least.
No, there is no obligation for us to provide meaningful interpretation of the data we accumulate about our daily lives and, no, there should not be. It may absolutely make an FBI agent’s job harder to prosecute a crime if they do not have access to encrypted evidence. But we create enough evidence incidentally that is unencrypted and available to third parties. Agents should feel free to battle the legal departments of those companies to obtain this information when necessary. But I see no good reason to add a law enforcement-only door to the world’s devices. Chances are, it’s not a door that will usually remain closed, nor will it remain solely in the hands of law enforcement.