Secrecy, Privacy and the Future of American Liberty

The “security vs. liberty” strawman argument remains the rhetorical weapon of choice for National Security State officials terrified by the spread of public encryption technologies, a development accelerated by Edward Snowden’s revelations of illegal mass surveillance by the U.S. government. They argue that, absent some form of government-accessible technological “back door” to break into private encrypted communications, federal law enforcement and intelligence agencies will be blinded, unable to fend off potential terrorist attacks here at home.

FBI Director James Comey is the leading government purveyor of the long-discredited idea that wide-scale adoption of public key encryption will result in this “going dark” scenario becoming a reality. Again this week, Comey renewed his ill-conceived anti-encryption campaign on Capitol Hill.

At a July 8, 2015 Senate Judiciary Committee hearing sensationally titled “Going Dark,” Comey and Deputy Attorney General Sally Quillian Yates claimed that encrypted internet messaging has obstructed counter-terrorism operations against ISIS.

“[I]n recent arrests, a group of individuals was contacted by a known ISIL supporter who had already successfully traveled to Syria and encouraged them to do the same,” they said in their testimony. “Some of these conversations occur in publicly accessible social networking sites, but others take place via private messaging platforms. These encrypted direct messaging platforms are tremendously problematic when used by terrorist plotters.”

But this contradicts the record. Recent court filings by the Department of Justice and federal court records show that encryption use by criminal elements has not precluded successfully breaking up theoretical or actual terrorist plots, including those involving U.S. citizens here at home.

And last month, the British tabloid The Sun claimed the paper helped U.K. authorities stop an ISIS attack by having one of their investigators dupe the leader of ISIS’ “CyberCaliphate” hacking operations into thinking the journalist was a would-be jihadist. The secure messaging app of choice for the ISIS contact was Surespot, which may already be under a Department of Justice order to cooperate in counterterrorism cases.The Sun’s own journalistic “sting operation” on ISIS shreds Comey’s argument that encryption technology spells the death-knell for effective law enforcement in counterterrorism operations. If a tabloid newspaper can figure out how to stop terrorists without the advantage of backdoors, why can’t federal government?

The Founders understood that true security only comes from the establishment of absolute liberty for the individual — the certain freedom from arbitrary search and seizure, arrest, detention, coercion or death at the hands of the government.

Indeed, some have argued that many American domestic terrorism cases have largely been manufactured by the FBI itself. And while that is certainly not true in every case, it is true that like all other federal agencies involved in the seemingly endless “War on Terror,” the Bureau has a built-in, bureaucratic incentive for launching these operations.

In a documentary on the investigation and prosecution of four Newburgh, New York men on terrorism charges, former FBI Assistant Director Thomas Fuentes admitted that “If you’re submitting budget proposals for a law enforcement agency, for an intelligence agency, you’re not going to submit the proposal that ‘We won the war on terror and everything’s great,’ cuz the first thing that’s gonna happen is your budget’s gonna be cut in half. You know, it’s my opposite of Jesse Jackson’s ‘Keep Hope Alive’—it’s ‘Keep Fear Alive.’ Keep it alive.”

Fuentes’ articulation of the bureaucratic self-justification at the heart of American National Security State is the antithesis of the vision of The Founders.

The generation of the Revolution rejected the very idea that one must trade basic rights for physical security. Instead, they created a form of government designed to promote and protect individual liberty as the very foundation of security — for the individual and society as a whole.

The Founders understood that true security only comes from the establishment of absolute liberty for the individual — the certain freedom from arbitrary search and seizure, arrest, detention, coercion or death at the hands of the government. Indeed, they used encryption to not only conceal their activities and intentions from British officials, but to maintain the security of their private correspondence on political and family matters as well.

The Fourth Amendment was drafted and approved by people who used encryption to communicate with one another to help win the Revolutionary War, and later, to express their private views to one another about how best to create a post-war form of government for the new American nation. Adams, Madison, Jefferson, Washington and the other Revolution-era Founders understood the importance of privacy and security in personal, as well as governmental, communications. They included no encryption “back door” language in the Fourth Amendment.

At the Senate hearing, Deputy AG Yates argued for a government “suggested” encryption “back door”, one that American companies could build into their products themselves that they could compromise at the government’s request. The idea is nonsensical because it would introduce the very kind of technical vulnerability that could still be exploited by hackers or hostile intelligence services. American technology companies should not be forced to compromise the integrity and safety of their products now because of a chimerical quest by government officials for a technological “back door.” It’s harmful not only to our communications, but to our rights — a theme sure to be sounded at this week’s Crypto Summit.

Patrick G. Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute, and an assistant professor in the Security Studies Program at Georgetown University.