President Obama made an appearance at SXSW and spoke about encryption. His comments are disappointing, but not surprising. To be honest I’m having a hard time thinking about this in a very civil manner. So I’ll pull a couple quotes, followed by my reaction.
Before smartphones were invented, and to this day, if there is probable cause to think that you have abducted a child, or that you are engaging in a terrorist plot, or you are guilty of some serious crime, law enforcement can appear before your – at your doorstep and say, we have a warrant to search your home, and they can go into your bedroom and into your bedroom doors and rifle through your underwear to see if there’s any evidence of wrongdoing.
I’m pretty tired of people using scenarios out of 24 to justify infringements on everyone’s Liberty. Jack Bauer loves water boarding, torture, and unlimited surveillance.
Now, technology is evolving so rapidly that new questions are being asked. And I am of the view that there are very real reasons why we want to make sure that government cannot just willy-nilly get into everybody’s iPhones that is full of – or smartphones that are full of very personal information and very personal data. And let’s face it, the whole Snowden disclosure episode elevated people’s suspicions of this.
Ya think? Why would a huge warrantless drag net make people suspicious of the government? After all, this information is only used for hunting terrorists. Oops, now this data can be shared with domestic law enforcement on cases that have nothing to do with foreign nationals or terrorism. I guess since I have nothing to hide I shouldn’t worry.
And the question we now have to ask is, if technologically, it is possible to make an impenetrable device or system where the encryption is so strong that there’s no key, there’s no door at all, then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have available to even do simple things like tax enforcement? Because, if, in fact, you can’t crack that at all, government can’t get in, then everybody is walking around with a Swiss bank account in their pocket — right? So there has to be some concession to the need to be able to get into that information somehow.
How did you catch bad guys before cell phones? How will making us all less secure by forcing manufacturers to give government access to encryption keys make bad guys magically not use third party encryption that is freely available around the world? And about that Swiss bank account comment? That actually sounds kind of cool, so you might want to rephrase that.
And so the question now becomes, we as a society – setting aside the specific case between the FBI and Apple, setting aside the commercial interests, concerns about what could the Chinese government do with this even if we trusted the U.S. government – setting aside all those questions, we’re going to have to make some decisions about how do we balance these respective risks.
Set aside these questions? These are central issues. It may make your argument sound better if you can somehow set aside implications, but that’s rhetoric, not reality.
My conclusion so far is that you cannot take an absolutist view on this. So if your argument is strong encryption, no matter what, and we can and should, in fact, create black boxes, then that I think does not strike the kind of balance that we have lived with for 200, 300 years. And it’s fetishizing our phones above every other value. And that can’t be the right answer.
I’m going to go ahead and take an absolutist view here. Something is either locked or it is not. There is no kind-of-locked setting on my front door. It is locked or it is not. I don’t leave my door unlocked when I leave just in case law enforcement has a warrant and wants to search my home. I may know that, in theory, there is a justice system that balances my rights against the state’s interests. I may even trust the government to always use their powers for good, I don’t, but an open door is open for anyone, burglars included.
I suspect that the answer is going to come down to how do we create a system where the encryption is as strong as possible, the key is as secure as possible, it is accessible by the smallest number of people possible for a subset of issues that we agree are important. How we design that is not something that I have the expertise to do.
Really? You don’t have the expertise to do that? I never would have guessed. John Gruber has collected some great examples of the effectiveness of securing Master Keys, here and here. Speaking of the TSA, Obama then goes on to speak of the TSA as an acceptable compromise between security and civil liberties… … … Let that sink in.
Because what will happen is if everybody goes to their respective corners and the tech community says, you know what, either we have strong, perfect encryption, or else it’s Big Brother and an Orwellian world – what you’ll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed, and it will go through Congress in ways that have not been thought through. And then you really will have dangers to our civil liberties because we will have not done – the people who understand this best and who care most about privacy and civil liberties have sort of disengaged or taken a position that is not sustainable for the general public as a whole over time.
President Obama concludes by basically warning that unless a compromise is reached we will have a second Patriot Act that will force the issue. He may be right here, but this is terrifying. The choice he lays out is basically that the tech industry needs to compromise its own security on its own terms or have Congress dictate how they will do it. This reminds me of the FBI’s most recent rebuttal to Apple, where they basically say, “We were being nice before, we could have come after the encryption keys, which we might do now.”
So here it is. President Obama has a way of sounding very reasonable, but just keep in mind that these government powers exist in perpetuity. Right now, Donald Trump is cleaning up in the Republican primaries, and if his success continues through November, law enforcement will be answering to him.