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There’s no question that the institution of automatic encryption by Apple and Google for their respective mobile devices has the intelligence community on edge.
Senior officials from a variety of agencies in Washington, D.C., have been complaining since Apple announced that it was instituting encryption for mobile devices that even Apple can’t break. Not fair, they say.
FBI Director James Comey upped the ante on Oct. 16 by proposing that Congress change the law it passed about 20 years ago, titled the Communications Assistance for Law Enforcement Act, which gives law enforcement access to electronic communications.
Problem is, the Act doesn’t require telecom companies to provide access to decrypted communications, nor does it require that the companies produce keys so that the feds can break in to private communications.
The FBI wants to change all that by requiring companies such as Apple and Google to provide back doors so that law enforcement can read whatever is on your smartphone at its convenience.
Comey trots out the old FBI bugaboo of asserting that people who want to protect their private information have something to hide, and suggesting that they are on the side of child molesters and terrorists.
But in fact, not wanting the government to read your email has nothing to do with having something to hide. The Fourth Amendment of the U.S. Constitution specifically states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
You’ll notice that there’s nothing in the Constitution, either in the Fourth Amendment or elsewhere, that discusses the convenience of the FBI or anyone else in law enforcement. Instead, it places a very difficult burden on the government requiring probable cause before any search can be conducted. When founders George Mason and John Adams wrote this part of the Constitution, their idea was that any search or seizure was supposed to be not only inconvenient for the government, but even difficult.
In fact, the framers of the Constitution were thinking about centuries of searches and seizures by the agents of absolutist monarchs in Britain and Europe who didn’t trouble themselves about such niceties as warrants and probable cause. The Constitution was written so the United States could turn its back on this example of arbitrary kingly rule.
The proposed changes would bring about a situation much like the Writs of Assistance during George III’s administration, when the king’s agents could poke through your home or office looking for whatever they might find.
Of course, things have changed. Now our personal information exists outside our houses, but under current laws they get the same protection. According to Ed Black, president and CEO of the Computer and Communications Industry Association, the walls of our homes now encompass our smartphones.
FBI Director Ignores 4th Amendment in Call for Encryption ‘Back Door’
“The kind of information that people keep in their smartphones is everything,” Black told eWEEK. “These are the modern houses for everything.”
Black also noted that even if we trusted the FBI not to exceed its authority when it searched through our digital homes, the fact is that such a back door would open up our records to everyone. “The FBI is not the only entity,” Black said. “What about divorce lawyers, county sheriffs or anybody else?”
The fact is that the FBI has a long history of abuses when it comes to searches and seizures, but it’s nothing when compared with the routine flouting of privacy protections by some local law enforcement entities or, for that matter, the National Security Agency, as evidenced by the massive document leaks of former NSA contractor Edward Snowden.
Adding to that are the nonexisting limits on foreign governments and other foreign organizations, criminal or otherwise. How long do you suppose it might be before the Chinese government or the Russian cybercrime syndicates find a back door if one existed? How long before repressive governments in Iran or North Korea found a way in? The fact is that even if the FBI’s record were pristine and its motives pure, it still wouldn’t be enough.
And while it’s clear that the FBI director sees his mission as fighting terrorism and crime, including child abuse, the fact is, the wholesale ability to prowl through honest citizens’ private effects isn’t the way to accomplish it. After all, don’t you suppose that the terrorists and abusers already know about encryption software? Breaking into their iPhones would only lead to another layer of encryption, this time without a back door.
To make matters worse, the FBI and other law enforcement organizations already have the resources they need to track down and catch terrorists and other criminals. While it might make it easier to get evidence for trial, breaking into a cell phone isn’t the only way to catch a crook.
Unfortunately, when it comes to snooping, the interests of law enforcement haven’t changed much in 250 years. The king’s agents, and now the FBI, don’t want to put forth any more effort than necessary. The tendency has always been to make citizens acquiesce to their convenience.
But this is the reason the Fourth Amendment to the U.S. Constitution exists. It is designed specifically to make it hard for law enforcement to snoop. Mason and Adams specifically intended for this to be the case because of their experience with the Writs of Assistance. The advent of modern technology hasn’t changed that, and despite the FBI director’s desires, watering down the Constitution isn’t the answer.