Amid growing alarm about the power of big tech, unprecedented numbers of people are transitioning to encrypted platforms like Signal, Telegram, and ProtonMail. But at the very moment encrypted platforms are taking center stage in our digital lives, they’re facing an existential threat. Organizations like the Center for Democracy and Technology warn “there is increasing… pressure” for companies to provide law enforcement with access to encrypted information.
Police never let a good crisis go to waste, even when they contribute to it forming. With Americans outraged that insurrectionists could take over our Capitol, law enforcement has been quick to lobby, yet again, for expanded surveillance powers.
But as we learned the hard way after 9/11, fear is a poor guide for making complex and lasting policy decisions. Rather than myopically taking steps sold as marking us feel safe, we need to invest in evidence-based measures that will make us safer. Scary as the present situation is, nothing about it justifies giving law enforcement a backdoor to crack encryption—which is what law enforcement demands after every high-profile failure.
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If a fearful society responds to the current crisis by creating new encryption limits to target extremists, everyone will suffer in the long-term. End-to-end encryption isn’t foolproof. But a mathematical key that transforms gibberish into words and images can provide a strong defense against third-party interception of our communications. By providing this layer of security, encryption safeguards what law professor Neil Richards calls intellectual privacy, “our ability to be protected from surveillance or interference when we are making sense of the world by thinking, reading and speaking privately with those we trust.” Now more than ever, it’s essential to provide basic protections for intellectual privacy. Government agencies and corporations aren’t just conducting pervasive surveillance. They’re incentivized to ramp it up continually. Surveillance creep is especially disconcerting because technological advancements that automate monitoring and analysis are poised to radically enhance surveillance capabilities.
Because all kinds of content can be encrypted, from innocuous notes to confirmation of nefarious activity, there’s been a longstanding fear of “going dark”—of law enforcement being unable to access communication they have good reason to be suspicious of, even with a warrant. If you’re currently hearing calls to challenge encryption from Democrats, remember that mere months ago Trump’s loyal attorney general, William Barr, called for Apple to unlock iPhones of a suspect in a naval base shooting. Because the company refused, he insisted a “legislative solution” was needed. Barr’s position wasn’t surprising. In an earlier keynote address given at the International Conference on Cyber Security, Barr put his cards on the table. “The Department has made clear what we are seeking,” he said. “We believe that when technology providers deploy encryption in their products, services, and platforms they need to maintain an appropriate mechanism for lawful access.”
Law enforcement is already well-placed to intercept the sort of planning discussions that led to the Capitol attack. As Evan Greer notes, they occurred “in plain sight”; the problem is a “systemic cultural and political unwillingness to take the threat of white supremacist violence seriously” not constraints on surveillance. Indeed, while encryption may be indispensable for individuals, it has severe limitations for large groups. A single undercover officer or confidential informant can join pseudo-anonymous online groups and report on the details of what’s said, especially with some encrypted alt-right groups’ growing memberships to tens of thousands of people.
But if we’re deprived of encryption today, we sacrifice far too much for the future. Government agencies will be able to use automated monitoring tools to track content on a far larger scale, placing truly unprecedented powers in the hands of those who failed us so spectacularly when we needed them most.
