What Will Obama Give You for Your Privacy?
Suppose that the government were to ask each of us to wear an unremovable bracelet that allowed our location to be determined in an emergency. The responsible agencies would promise never to use this authority in the absence of a court order. True, there would be a potential threat to privacy, but supporters would contend that the trade-off was worthwhile: Terrorists and child kidnappers would be easier to catch.
I’m not sure how much you would like this suggestion. I for one would fight it tooth and nail.
Although we’re certainly nowhere near that point, there is a bit of the same flavor in the government’s pressure on smartphone makers not to use encryption so strong that law enforcement agencies can’t break it when they have to.
Attorney General Eric Holder raised the ticking time bomb specter in a speech last fall: “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.” FBI Director James Comey sounded much the same alarm: “There will come a day when it will matter a great deal to the lives of people ... that we will be able to gain access.”
Last week, President Barack Obama weighed in. In an interview during the White House’s Cybersecurity Summit at Stanford University, the journalist Kara Swisher asked him whether everyone deserves e-mail and phone encryption as strong as the president’s. Here’s his answer in full:
Everybody should. And I’m a strong believer in strong encryption. Where the tension has come up, historically, what has happened, is that -- let’s say you knew a particular person was involved in a terrorist plot. And the FBI is trying to figure out who else were they communicating with, in order to prevent the plot.
Traditionally, what has been able to happen is that the FBI gets a court order. They go to the company, they request those records the same way that they’d go get a court order to request a wiretap. The company technically can comply. The issue here is that -- partly in response to customer demand, partly in response to legitimate concerns about consumer privacy -- the technologies may be built to a point where, when the government goes to …
At that point, Swisher interrupted: “They can’t get the information.”
Obama’s answer: “They can’t get the information.”
The following dialogue ensued:
Q: Is what they’re doing wrong?
A: No, I think they are properly responding to a market demand. All of us are really concerned about making sure our …
Q: So what are you going to do?
A: Well, what we’re going to try to do is to see: Is there a way for us to narrow this gap? Ultimately, everybody -- and certainly this is true for me and my family -- we all want to know that if we’re using a smartphone for transactions, sending messages, having private conversations, that we don’t have a bunch of people compromising that process.
So there’s no scenario in which we don’t want really strong encryption. The narrow question is going to be if there is a proper request for … this isn’t bulk collection, this isn’t sort of fishing expeditions by government.
Where there is a situation in which we’re trying to get a specific case of a possible national security threat -- is there a way of accessing it? If it turns out it’s not, then we’re really gonna have to have a public debate. And, you know, I think some in Silicon Valley would make the argument -- which is a fair argument, and I get -- that the harms done by having any kind of compromised encryption are far greater …”
Swisher then asked the president whether his position signals a change in his views on civil liberties. Here’s his answer:
“I’m as strong as I have been. I think the only concern is our law enforcement is expected to stop every plot. Every attack. Any bomb on a plane. The first time that attack takes place in which it turns out that we had a lead and we couldn’t follow up on it, the public’s going to demand answers.”
Obama added: “I lean probably further in the direction of strong encryption than some do inside of law enforcement. But I am sympathetic to law enforcement because I know the kind of pressure they’re under to keep us safe. And it’s not as black-and-white as it’s sometimes portrayed.
“Now, in fairness, I think the folks who are in favor of airtight encryption also want to be protected from terrorists.”
This discussion of encryption concluded with the following exchange:
A: One of the interesting things about being in this job is [that] it does give you a bird’s-eye view. You are smack-dab in the middle of these tensions that exist. But I guess what I would say is, there are times where folks who see this through a civil-liberties or privacy lens reject that there’s any trade-offs involved, and in fact there are. And you’ve got to own the fact that it may be [that] we want to value privacy and civil liberty far more than we do ...
A: The safety issues. But we can’t pretend that there are no trade-offs whatsoever.
That last line about trade-offs has brought ridicule from some tech writers, who argue that the government is always asking others to make trade-offs, but is never willing to make any of its own. Yet overall, the president was well prepared for Swisher's questions and handled them expertly.
Nevertheless, a problem remains. If tech companies agree to put in backdoors allowing law enforcement agencies armed with court orders to break through the strong encryption, they are taking two risks. One risk, never small, is that others will eventually discover the backdoors, making the encryption weaker or useless. The other is that the agencies themselves might overreach, using their new powers because they want to and because they can.
In effect, the government is promising not to abuse its authority. But there’s little in our history to suggest that official powers, once granted, are used as sparingly as originally promised. This week’s disclosures that the National Security Agency has stolen the encryption keys for literally millions of mobile phone SIM cards doesn’t exactly add to the list of reasons to trust law enforcement when it comes to privacy.
I’m not defending criminals who hide behind encryption as they plot to blow up buildings or trade kiddie porn. But here I’m with the critics. When the government begins talking about trade-offs, it’s useful for its leaders to make clear what exactly they plan to surrender in the trade.
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