The Right to End Privacy

It finally happened. It took a few years for law enforcement officials to synchronize the drumbeat, but it seems that FBI Director Christopher Wray and Attorney General William Barr have convinced lawmakers that it’s time to ban the use of end-to-end (E2E) encryption for electronic communications. 

Say hello to the Lawful Access to Encrypted Data Act, introduced in the Senate to end the use of so-called “warrant-proof” (i.e. E2E) encryption technology in the U.S. You might recall another bill introduced in the Senate this year called EARN IT, which many feared would result in an encryption ban without imposing one outright. The new bill goes right for the throat. Part of me wonders if it is intentionally extreme to make EARN IT appear sensible by comparison. I guess we’ll see about that.

Privacy: For the Service Providers or For the Users?

I’ve said it before that I hate how service providers are stuck in the middle of this issue. The real target of these proposals is the people, or privacy itself. Despite this, they only appear to be regulating service providers. Which gets me thinking, what if we put a button in Wickr so that users could decide whether they want to use E2E encryption or not? Say a user chooses to encrypt, and because of that choice, law enforcement can’t access the messages they send. Who would have made those communications warrant-proof?

My point is that it’s USERS who want their data secured. Service providers aren’t encrypting it because we’re trying to thwart law enforcement investigations. Heck, I was a law enforcement officer. I’m a life member of the forces for good. Service providers like Wickr are trying to protect our users. We are an instrument of their will. They believe, as I do, that data critical to their personal lives and livelihoods is seriously threatened by cyber thieves, vandals, and nation-states. They also believe, as I do, that weakening encryption — their best defense against these threats — is a path to disaster. Ask your average law-abiding citizen if reducing their cyber, home, or personal security is likely to prevent more crime or cause it. Now multiply that by a couple hundred million people. That’s where these proposals lead us.

Freedom vs. Risk

News flash: criminals try to hide their activity from the police. They always have, and always will. Freedom comes with the proportional risk that it will be abused by some citizens. You can’t increase freedom without increasing the risk and you can’t reduce the risk without reducing freedom. I have no illusions and know full well that criminals exploit products like Wickr. They exploit a lot of things. Technology changes the way crime is done as much as it changes the way personal life and business is conducted. Law enforcement must adapt.

The Lawful Access to Encrypted Data Act claims to be “a balanced solution that keeps in mind the constitutional rights afforded to all Americans, while providing law enforcement the tools needed to protect the public from everyday violent crime and threats to our national security.” I know they’re really talking about the 4th Amendment, but where in the Constitution is the government empowered to deny us privacy? The 9th Amendment says our rights aren’t capped at 10. Shouldn’t privacy be hands-off?

The Importance of Principles

Consider the protests that occurred in many U.S. cities following the killing of George Floyd in Minneapolis, MN. These protests occurred at the height of the COVID-19 pandemic, and most of these cities had strict social distancing rules in effect. Were the protests banned in the interest of public health? No, they weren’t. A small number of people abused their right to assemble, camouflaged themselves among lawful protesters, and assaulted police, looted businesses, attacked and killed innocents, and caused millions of dollars in property damage. Were the protests banned to stop the violence? No, they weren’t.

I can hear you thinking. Don’t worry, this is a no-politics zone. I’m simply making a point about babies and bathwater. We didn’t ban the protests even though doing so probably would have saved lives and prevented a lot of property damage. We didn’t ban them because our freedom to assemble and protest is so cherished that we wouldn’t dare suppress it, even when faced with some rather ugly side effects.

That’s what it means to have principles. You stick to them through thick and thin, when it’s not easy or painless. I believe the right to speak privately in America should be just as sacrosanct as the right to assemble and speak publicly. It should be important enough to be cherished even though at times it’s abused. 

The Right to Privacy

As articulated so brilliantly by Warren and Brandeis in their 1890 Harvard Law Review article “The Right to Privacy”, our privacy rights are granted in common law and stem from some of the same traditions and principles that give us our right to life, property, and the pursuit of happiness. My “right to be let alone,” as they put it, forms a basis for a similar right to hold a private thought or share a secret with another. Privacy is a higher, natural right; higher than those guaranteed in the Bill of Rights, and one that is shaped in the shadow of liberty itself. Without it, we’re not truly free. I don’t believe Congress has the right to take it away.