Odds are that every day you wake up, go to work, run your daily activities and throughout the day you probably send a text to your wife, husband, child, coworker, or friends. This modern form of communication is second nature to most people and there a sense of security that only the person you send your message to will read it. Therefore, many companies such as Apple are enhancing their message security by strengthening their encryption protection. This has led to a great amount of worry on behalf of the government that they will not be able to detect and intercept criminal activity.
While the government is aware that the actions taken by companies such as Apple is not to create protection for criminals, its major concern is that with the difficulties of readily getting messages terrorist activities will go undetected for longer periods of time. During a meeting with Apple executives in October 2014, the No.2 official at the Justice Department, Deputy Attorney General James Cole delivered a very strong statement, saying that this type of enforcement would lead to tragedy.
Cole stressed that the problem goes even deeper than just intercepting the messages. Companies such as Apple, Google, and Facebook have challenged requests and warrants for access to messages stating that they won’t have the key to decipher the encrypted massages. Apple’s Chief Executive Tim Cook stressed their distance from government intrusion stating, “Look, if law enforcement wants something, they should go to the user and get it, it’s not for me to do that.”
So, is the threat to National Security being ignored here? Is privacy being held as more important than preventing potential terrorist attacks?
Moxie Marlinspike, a San Francisco- based technologist who founded Open Whisper Systems, said, “From celebrity nudes to Iranian dissidents, private communications is valuable for everyone.” Even in 2010, then Secretary of State Hillary Rodham Clinton urged for the respect of online privacy and speech rights, which triggered the creation of encryption privacy tools. The government, however, sees this encryption as a threat to national security instead of a violation of privacy rights. Juan Zarate, CBS News national security analyst, discussed the standoff between the tech companies and U.S. government and stressed how although privacy rights are being respected it is impeding the government in the greater picture, which is national security.
What has infuriated tech companies and the general public is that by the government trying to acquire the encrypted messages, the Fourth Amendment right of privacy is being infringed. Privacy advocates, like the ACLU have made it clear that there is a fundamental infringement of personal privacy when it comes to access of encrypted messages. There have been instances when courts have issued warrants allowing local law enforcement to access to seized phones of law offenders and this has blurred the lines of what messages can be seized and which should carry a higher level of privacy and security. In those cases the messages seized have been from a particular person who was placed in custody. However, by wanting access to all messages via encryption keys, the government is essentially asking for access to personal messages regardless if it is likely to be beneficial for law enforcement use.
There is a lot that needs to be discussed by policy makers when it comes to the restriction of encryption. In an age where most information is transmitted electronically, the government does have legitimate reason to believe that by having access to encryption keys they may be able to stop future terrorist attacks. However, the issue of privacy is one that will be the greatest opponent to such a broad blanket request.
The Fourth Amendment text, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” carries a lot of weight in impeding overall access to any messages by the government. Law enforcement efficiency is the most commonly cited reason to allow the government blanket access to all encrypted messages but if there is such a great exception then where is the line drawn to where the public’s privacy exists? Andrew Weissmann, a former FBI general counsel who teaches at New York university School of Law, summarizes the problem the best. At a panel sponsored by New America’s Open technology Institute he states, “[t]here’s not perfect solution. [The issue] is how can each side minimize the risk?”
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