FBI Director Ignores 4th Amendment in Call for Encryption 'Back Doors'

NEWS ANALYSIS: FBI Director James Comey rails against encryption while calling for laws abrogating constitutional protections and effectively bringing back the "Writs of Assistance" for tech companies of pre-revolutionary days.

Encryption Back Door

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.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...