Transparency in the EARN-IT Act

End to end encryption helps save lives.  That is a very cool truth for someone – like me – who works for a company that builds end to end encrypted products.

Receiving thank you messages from customers who use our products to save lives keep me and my colleagues working around the clock.  This is especially true today when our customers are accelerating their plans to provide secure collaboration to a suddenly remote workforce.

These are encouraging messages because, as witnessed in the public debate over the proposed EARN-IT act, there are those who are less enthusiastic about the good that can come from encryption.  Perhaps these perceptions have changed now that our most sensitive communications are happening over products with client-server encryption.  This weaker form of encryption has been considered by some to be “Good Enough” or “Better than Nothing” because the end-user could keep their most sensitive work offline and in the office.  Today that reality has shifted.

I’ve spent 20 years listening and learning from the smartest technologists, the most passionate law enforcers and sophisticated privacy lawyers.  The key to navigating this debate over encryption is transparency.  Just as its important to understand the protocols upon which encrypted products are built, it is similarly important to identify the underlying protocols  – or motivations – of the voices in this debate. 

Transparency and trust are core tenants of providing strong encryption. In order to trust end to end encrypted communications there must be:

  • Transparency of the cryptographic protocol.
  • Transparency about what data is collected and therefore subject to discovery.
  • Transparency reporting that acknowledges interactions with law enforcement. 
  • Transparency about security testing and the results of these tests. 
  • Transparency with end users as to when their communications are retained according to corporate policies. 

Transparency is critical because users have to be aware of how a system works in order to trust the system.  The same goes for the politics surrounding encryption. 

To be transparent, unlike a number of my colleagues in security and privacy, I’m not overly concerned about the EARN-IT Act.  I see this as an inevitable and healthy step in the progression of this debate.  I hope this is the long-awaited step when legislators give up on asking for a magical backdoor in favor of moving to their comfort zone – tort law.  For years legislators have asked technologists to bend math and logic to provide special access to data.  The motivation is rational, but the execution and oversight are not possible. Perhaps legislators have finally come to grips with this reality and are shifting focus to creating rules and norms rather than undeliverable features.

If they were transparent, Senators would admit they are in the business of getting votes. By proposing to lift immunity of Section 230 for organizations who do not take reasonable measures to prevent the distribution of child pornography Sen. Lindsey Graham (R-S.C.), Sen. Dianne Feinstein (D-Calif.), Sen. Richard Blumenthal (D-Conn.), and Sen. Josh Hawley (R-Mo.) are operating in a realm of comfort – Taxation through civil litigation.  This is a timely exploitation of what respected privacy researcher Riana Pfefferkorn refers to as ‘techclash’. They are looking to put their names on legislation that they hope will play well with voters who identify with the growing distrust of big technology providers.

If they were transparent, the big technology providers would admit that they care most about revenue. They will react negatively to EARN-IT, but it will be a low priority unless it impacts their bottom line.  They know that lawmakers need their pound of flesh.  While end to end encryption can provide security and privacy to millions of users, the primary benefit it provides a company like Facebook is the inability to police content.  To summarize, if EARN-IT put ad revenues at risk we’d see much more than a quickie tweet from the Information Technology Industry Council. 

This gets to the real frustration that created EARN-IT.  Elected have been mostly toothless in penalizing big tech when they generate trillions of dollars in wealth by systematically abusing the privacy of their constituents.  So, there is understandable frustration when these same companies cite privacy for not cooperating with law enforcement.  If legislators were really serious about protecting children, then they would use their superior understanding of modern compensatory tort systems to put these ad revenues at risk. 

If they were transparent, law enforcement would admit that catching law breakers is prioritized far above privacy rights.  The 4th amendment is not an arrow in their investigative quiver. This is why privacy advocates worry that AG Barr and a committee of law enforcers will have too much power in defining what measures are reasonable in combatting child pornographers.  The definition of reasonable is not clear in the 11 Voluntary Principles established by the Department of Justice to provide a baseline framework for companies that provide online services to deter use of the Internet as a tool for sexually exploiting and abusing children.  But I would hope that the definition of reasonable would be tied to a company’s strategy for access and monetization of data.

To be transparent, I only care about the promises we make to our customers and that we continue to do everything reasonable to protect the vulnerable.  I do not believe that privacy is the enemy of security. We have an opportunity to redefine how data is transported and protected… and what it means to be a trusted service provider.  I believe that encryption can be used to build trustworthy computing because we place our trust in math rather than the best intentions of organizations that, ironically, survive only by monetizing the information they are trusted to protect.

Our customers benefit from the security provided by encryption, but only because we are transparent about how we build and manage our products.  This transparency lets them trust our systems and implement policies that dictate how their information should be protected, retained and deleted.  Its these policies – or rules – that make our encryption powerful. 

Let’s hope EARN-IT has finally shifted the conversation from building magic to creating and enforcing rules and mandating reasonable behavior.  The concern that this is a ploy for creating new rules that outlaw encryption and personal privacy is understandable.  That said, the Fourth Amendment is a powerful and resilient truth that has withstood centuries of challenges.  We should be optimistic that our law makers will continue to protect this foundation of our democracy.

We should be equally optimistic that efforts of companies building zero knowledge systems to promote data privacy and security will be scrutinized differently than those who build products to profit from secretly gathering and selling user data.  The reasonable steps privacy practitioners have taken, and will continue to take, to protect data and aid law enforcement certainly cannot be measured by the same standards imposed on companies who profit from data exploitation.