Your smartphone has a lot of private stuff on it. Passwords, photos, messages, files. You want to keep it private. So it’s a good thing that companies are building better encryption into their phones, right?
Not according to law enforcement. They complain a lot about encryption. Encryption is pretty good, these days, which means law enforcement can’t easily get stuff that’s encrypted. It used to be you have to be kinda tech-savvy yourself to encrypt your stuff. But now phones are encrypting your stuff by default. Cops, prosecutors, spies, and regulators want those passwords, photos, messages, files. And now they can’t get them. They’re frustrated. Like a spoiled brat throwing a tantrum, telling her dad to make Willy Wonka give her what she wants, they shout at lawmakers to make the nasty companies give them access. Maybe they don’t go “if you loved me, you would” (though they might), but echoing the rallying cry of governmental overreach everywhere, they scream “think of the children!”
Seriously, that’s their argument. Eric Holder, our recently-departed Attorney General, cried “think of the children!” last autumn at the Global Alliance Against Child Sexual Abuse Online conference. Law enforcement can do its job while “adequately protecting” your privacy (whatever he thinks that means), he said — but “when a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”
Damn those evil, evil companies for helping child abusers!
It’s a common refrain. Just the other day, a Massachusetts district attorney testified before Congress that “when unaccountable corporate interests place crucial evidence beyond the legitimate reach of our courts, they are in fact placing those who rape, defraud, assault and even kill in a position of profound advantage over victims and society.”
Damn those evil, evil corporations!
What law enforcement needs, they say, is a “backdoor” — they demand and insist that tech companies build flaws into their encryption, so that government can get those secret files and catch bad guys. We can trust law enforcement to only use those encryption flaws for a good cause. And it’s not like any of those bad guys will be able to use those flaws to commit more crimes.
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Of course this is pure nonsense. And fortunately there was at least one congressman present on Wednesday who knows it.
California Rep. Ted Liu called B.S., in no uncertain terms. Tech companies aren’t doing this to help criminals, he said, but to protect their customers. “Because the public is demanding it.” And by the way, the public is demanding it because it “does not want an out-of-control surveillance state.” That’s right, the public is demanding protection from the government.
Which is what the Fourth Amendment’s all about, after all. Protecting our privacy from government intrusion.
This may seem obvious to you. That you have basic privacy interests in your stuff. And just because the government wants to see it, that doesn’t mean they should be able to.
But law enforcement doesn’t see it that way. Nope. Cops and prosecutors and spies and regulators honestly believe they are entitled to it. If evidence of a crime exists, they honest to God think there oughta be a way for them to get it.
That’s the fundamental disconnect that’s driving this debate. Because they’re wrong.
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Let’s set aside the colossally stupid assumption that only good guys will be able to exploit backdoors to encryption. But only after noting that this alone demonstrates an enormous lack of understanding about how data tech works. That the folks who are supposed to be protecting us from malicious hackers want to give those very crooks a way to steal our private data, our bank accounts, our private photos — this alone should be alarming as hell.
Who’s accusing whom of aiding and abetting the bad guys?
But let’s set that aside. Let’s focus on that disconnect. That fundamental misunderstanding of the role of law enforcement, of the Constitution they’re sworn to uphold, and what law enforcement is “entitled” to.
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Here’s the deal: Law enforcement isn’t entitled to a damn thing.
Yes, we’d love for them to be able to get all the evidence they lawfully can. Absolutely. If there’s evidence of a crime, and the government can find it without violating anyone’s rights, then by all means the government should do so. Society wants criminals to be punished for their crimes, and that can’t happen without evidence to prove that they did it.
Society wants that. But it demands that government not violate our rights in the process. There’s nothing in the Constitution granting law enforcement the right to collect evidence. But there’s plenty in there specifically protecting individuals from the government, specifically limiting what the government can do when it tries to gather evidence. Why? Because although catching and punishing the bad guys would be nice, it’s not as important to us as making sure the government doesn’t use its awesome power to do bad things to us.
We’ve balanced it nicely with our Exclusionary Rule. If law enforcement crosses the line, then they’re not allowed to use evidence they got by crossing that line. But they can still use the other stuff they got lawfully. This encourages them to gather all they lawfully can, without any fear of repercussions, and only takes away stuff they shouldn’t have had in the first place. And our courts bend over backward to say evidence was lawfully gathered.
But not everything can be lawfully gathered. It just can’t. Just because it exists, that doesn’t mean the government can see it.
“But private actors can see it!” you hear law enforcement cry. “Where’s the justice in a system that prevents the police from seeing stuff a civilian or a company could see?”
One: You are also civilians. No matter how much you arm yourselves with military gear and dress up like soldiers, police are not the military. You’re us. We’re not “them.”
Two: As Representative Ted Liu pointed out in a strong rebuke to the D.A. at that hearing, “here’s the difference: Apple and Google don’t have coercive power. District attorneys do, the FBI does, the NSA does.”
It’s simple. Private actors aren’t restricted by the Fourth Amendment, because private actors aren’t the government. They can’t throw you in jail. Maybe they can sue you or ding your credit rating, but the government can destroy your life and even take it away. The Constitution tries very hard to limit what the government can do with all that power. And as Rep. Liu concluded, “it’s very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.”
So no. You can’t whine and cry that you’re not allowed to see things the rest of us can see. We need to be protected from you. Our founding fathers knew it. The Constitution you’re sworn to uphold exists to protect us from you. From you, not from Google.
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“But what about the children!”
What about them?
“What about a kid who’s in danger of being horribly abused by a bad guy?”
And you have his phone, but not… him?
“Didn’t you hear us? A kid could have been horribly abused!”
That would be sickening and awful, and we’d love it if you caught the guy who did it.
“Well, what if the evidence we need to prove the bad guy did it is encrypted on his phone?”
And you’d know this… without having other evidence?
“For the sake of argument, yes! My God, we won’t be able to punish the man who made this child suffer!”
And this is different from every other case where you can’t find the evidence you need… how?
“We know it exists! Probably!”
And this is different from any other case where you can’t find the evidence you need… how?
“But tech companies can design their products so we can find the evidence! Government should compel them to do that!”
Well, how about private safes and security vaults, should those manufacturers be forced to design inherent flaws so cops can open them easily?
“That’s a great idea! Yes!”
Wait, I didn’t-
“Yes! And lawyers and doctors and priests — we should be able to force them to tell us what the suspect told them! And…”
You’re starting to scare me. This is the kind of government overreach we’re afraid of. Don’t you get it?
“But think of the children!”
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