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The “Balance” Between Safety and Privacy: Why Going Dark Offers a Shining Light

On July 8th the Senate Judiciary Committee held a hearing titled “Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy.” In his opening statement, Senator Chuck Grassley explained that “[c]ompanies are increasingly choosing to encrypt these devices in such a way that the company itself is unable to unlock them, even when presented with a lawful search warrant.”

From Grassley’s opening statement:

[O]ur data has increasingly become a target for hackers, criminals and foreign governments. We pick up the newspaper and read about breaches that have left personal data exposed almost on a daily basis. So we want our data to remain private and secure, and it’s natural that companies seek to respond to this market demand. But at the same time, these wonderful technologies are also being employed by those who seek to do us great harm… ISIS is recruiting Americans on-line and then directing them to encrypted communication platforms that are beyond the FBI’s ability to monitor, even with a court order...Are there ways that we can provide law enforcement judicially-sanctioned access to these platforms without compromising their overall security? Or are there other potential reforms that could simply shift the balance less dramatically?

The answer to these questions is “no.” The Fourth Amendment is immutable (without amending the Constitution, that is), and the “balance” between privacy and safety shouldn’t be a conversation because nothing is more important than honoring our Constitution and the civil liberties it protects.

Deputy Attorney General at the Department of Justice, Sally Quillian Yates, who testified at the hearing, and Director at the Federal Bureau of Investigation, James B. Comey, appealed to fear and emotion by writing that “[w]hen changes in technology hinder law enforcement’s ability to exercise investigative tools and follow critical leads, we may not be able to identify and stop terrorists who are using social media to recruit, plan, and execute an attack in our country.”

However, Senator Patrick Leahy (D-Vt.) illuminated how he fought against regulation of encrypted technology in the 1990s because of its promise to kill American innovation and business. He explained that today he continues to believe in the ever-changing technology:

Even if the United States were to take steps to facilitate law enforcement access to encrypted communications, we need to evaluate how much it would help. Strong encryption would still be available from foreign providers. Some say that any competent Internet user would be able to download strong encryption technology, or install an "app" allowing encrypted communications – regardless of restrictions on American businesses. But it would put American companies at a disadvantage in the global marketplace.

Encryption technology already exists, and can be accessed by anybody who cares enough to possess it. Criminals, who do not follow regulations, will continue to use encryption technology. So, who will the proposed regulations affect? The rest of us.

Grassley wrote in his statement that law enforcement “must obtain an individualized warrant or court order to conduct a search that would violate a person’s reasonable expectation of privacy.” That warrant must be “issued by a neutral and detached judge based on facts that demonstrate probable cause.”

However, the federal government does not play by these rules. Bulk collection of data by the NSA based on general warrants is a clear violation of the Fourth Amendment. Regulations on the development of new technology which put a cap on American innovation will not protect us from terrorists, but rather protect the ability of the NSA to spy unconstitutionally on American citizens while ensuring our inability to compete with foreign competitors.

If our government is able to hack our devices, it means outside organizations and governments can access our private information as well. If our encryption standards are weak, malicious groups and individuals who want to hack our technology win. In effort to make us safer, our government will actually be making us more vulnerable, because it is impossible to make technology only hackable by the “good guys.” In the words of Ben Franklin, “[p]eople willing to trade their freedom for temporary security deserve neither and will lose both.” We should all be skeptical of government regulation and spying.