GOP Platform Wants It Both Ways on Encryption

The infamous concept of 'balance' rears its head.


picture alliance / Frank Duenzl/Newscom

In a section of the Republican 2016 platform titled "A Rebirth of Constitutional Government," the writers set aside sections devoted to the various branches of the government (of note: it explicitly says they believe the judicial branch is supposed to be "the weakest branch") and amendments of the Bill of Rights to detail various positions.

There is a section devoted to the Fourth Amendment to discuss "liberty and privacy." Part of it is about opposition to the Foreign Account Tax Compliance Act (FATCA) as a warrantless seizure of personal financial information of Americans overseas (Matt Welch has written extensively about the awfulness of FATCA for Reason over the years).

But before the FATCA section is a discussion of surveillance and encryption. Here's what it says:

Affirming the Fourth Amendment "right of the people to be secure in their houses, papers, and effects, against unreasonable searches and seizures," we call for strict limitations on the use of aerial surveillance on U.S. soil, with the exception of patrolling our national borders for illegal entry and activity. We oppose any attempts by government to require surveillance devices in our daily lives, including tracking devices in motor vehicles.

In recent years, technology companies have responded to market demand for products and services that protect the privacy of customers through increasingly sophisticated encryption technology. These increased privacy protections have become crucial to the digital economy. At the same time, however, such innovations have brought new dangers, especially from criminals and terrorists who seek to use encryption technology to harm us. No matter the medium, citizens must retain the right to communicate with one another free from unlawful government intrusion. It will not be easy to balance privacy rights with the government's legitimate need to access encrypted information. This issue is too important to be left to the courts. A Republican president and a Republican Congress must listen to the American people and forge a consensus solution.

Ah, the word "balance." We hear it a lot when government officials discuss whether or not they're actually going to respect citizens' civil liberties. The government has "needs," you see, and so there has to be a "balance."

The problem with this argument is that the Fourth Amendment already is the balance between rights and government powers. It contains the mechanism in its construction for government to demand access to the records and data of private citizens in order to fulfill its responsibility to protect the public from criminals and terrorists: the warrant.

The warrant gives police and similar officials the legal authority to collect data and records to fight crime. And the judiciary here is frequently (as the GOP wishes) very lax about signing off on them. It's very easy for an officer of the law to get a warrant (and that's not even getting into the many ways they're able bypass even that). What the encryption debate is about is the fact that a warrant can't actually "guarantee" access to information or data. Those in the government who want to demand that tech companies deliberately weaken their encryption or to provide special access are willing to compromise everybody's data privacy—millions of people not suspected of any sort of illegal activity—in extremely dangerous ways in order to satisfy their "need" for access.

If a person were to take evidence of a crime, stick it a lockbox, and bury it out in the Mojave Desert, by way of example, the police could work very hard, legally, to try to track down and collect that evidence. What the government can't do is demand that companies that produce lockboxes, say, install tracking devices (note the platform's previous paragraph on surveillance) to facilitate the police finding them. The government does not have the authority to be able to know where everybody's lockboxes are. It has the authority to try to collect the contents of a specific identified person's lockbox, but they're not guaranteed to get it.

There's nothing particularly special about encryption that should make its treatment by the Fourth Amendment different from "real world" privacy and security measures. We have any number of unsolved murders and other crimes precisely because a warrant is no guarantee that police can find the information they're looking for. But they also can't just demand that all Americans accept severely compromised security and privacy in order to make fighting crime easier.

And no, "listening to the people" is not the answer either, because that's not how civil liberties work. Individuals can decide for themselves if they want to live their lives open to public view and to have little privacy or security. But they can't make that decision for others. That's not how a right works. We should also be wary whenever a political party declares that an issue is "too important to be left to the courts." Yes, there is a problem here that a lot of our Fourth Amendment protections have been compromised by the Supreme Court's decades-old "third-party doctrine" precedent on citizens' records that has failed to adapt to how much personal data is no longer under our direct control. But given that the platform literally says it wants a weaker judiciary and has provided other examples where it feels that the decisions of lawmakers' should not be subject to judicial review, Fourth Amendment supporters should be concerned that this statement is not actually about making protections stronger.

NEXT: This GOP Congressman Compared Donald Trump To Thomas Jefferson. Then Things Got Weird

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  1. Fuckin A, well told, Bubba!

    Good piece, Scott.

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  2. Warrants this and warrants that. I’m beginning to think the Koch brothers have stock in Big Warrant or something.

  3. the Republican 2016 platform titled “A Rebirth of Constitutional Government”

    More like “An Afterbirth of Constitutional Government”. 8-(

  4. If you have more than $10,000 parked overseas, you have to disclose each and every account to the IRS, including the maximum value it had in the previous year, or face ruinous fines and even jail time.

    But if it’s in, say, *Euros* you don’t have to, right? RIGHT?!

    1. But if it’s in, say, *Euros* you don’t have to, right? RIGHT?!

      Wrong. $10,000 or the equivalent.

  5. This just begs the question. The problem with encryption arises if it becomes effective enough that the government can never get into with or without a warrant. The analogy isn’t a lock box in the dessert. The analogy is a lock box that no locksmith can pick. And that is a much harder question than the more general and deceptive question of should people be able to shield things from the government. Of course they should.

    Reason is either too dim witted or too dishonest to understand that encryption won’t always work for the best. They seem to think that it is only an issue when the government wants to abuse people’s privacy. And it certainly can be an issue then. But sometimes the government has a real need and right to get at information. Suppose a defendant accused of a crime says that some person has exculpatory evidence on their computer and that computer is encrypted such that no one can get at it even with a court order and the owner is either unavailable or refuses to give over the key? What then? What if the encrypted material is evidence of real government malfeasance?

    I understand the risks associated with encryption that the government can break. But too often Reason acts like it is an entirely one way debate. It is not. People’s privacy matters but so does the ability for litigants and prosecutors to obtain evidence justice demands they be able to obtain.

    1. What if the encrypted material is evidence of real government malfeasance?

      At the risk of appearing snarky — WDATPDIM?

      1. Okay, lets pretend that the encrypted material is evidence of government malfeasance committed by a Republican or a black Democrat.

        There, that makes my point more realistic.

      2. Assuming that there is unbreakable encryption that is forbidden to the general public, what on earth makes you think it won’t be used by the government (for “national security”, of course) and thus won’t be used to hide malfeasance?

        1. Because not all government malfeasance is committed by people smart enough or thorough enough to do that. Hillary Clinton didn’t even both to properly protect her home made server. The IRS had to resort to crudely deleting all of the emails and were not even bright enough to realize there was an automatic backup that could be accessed.

          If the misconduct is being done by someone smart enough to use the super secret encryption, chances are you won’t ever know about it. More importantly, nearly all if not all government misconduct is committed by arrogant dimwits who are not going to bother with the super secret encryption.

          1. All true, John.

            But my point remains that the government will avail itself of unbreakable encryption even if it prohibits it for the proles.

            Why should the government be able to use it if we can’t? All the reasons we shouldn’t be able to use it apply equally to the government.

            1. One needs to distinguish between the encryption algorithms and the encryption keys.

              I don’t think any case can be made that the public should not be able to employ strong encryption algorithms. For one thing, many of them have been developed by mathematicians not working for the U.S. Government, and have been published in the open. What claim does the government have to stop this process? Are we going to invent another unconstitutional “exception” out of whole cloth, a la nukes and the NRC?

              However, if you agree with John that the government should be able to obtain evidence that, all else being equal, it has claim to, then the question is about whether a person can be compelled to disclose the encryption key for an encrypted disk (or encrypted file, etc.).

              1. Note that the question of forced disclosure of an encryption key has no bearing on the question of the use and availability of strong encryption algorithms.

                If, as the courts have said, privacy is a Constitutional right of the people, then strict scrutiny applies and the government must use the least restrictive means for achieving its interest. Since the contents of an encrypted disk can be obtained trivially with the encryption key in hand, banning encryption algorithms that are “too strong” is a more restrictive means to achieve the government’s interest and thus fails strict scrutiny.

            2. Maybe they will. But so what? That doesn’t address any of the concerns I give. Whether the government uses the encryption or not won’t help or make any difference to the defendant deprived of exculpatory evidence or the victim of a crime deprived of justice.

        2. While not technically unavailable to the public, one time pads are generally to cumbersome to be worthwhile for anyone other than spies. The government has had unbreakable encryption for a long time.

    2. People’s privacy matters but so does the ability for litigants and prosecutors to obtain evidence justice demands they be able to obtain.

      What if they simply destroyed said evidence? If nothing else, the penalty for failing to disclose one’s encryption key should not exceed the penalty for destroying it altogether.

      Moreover, the real question being begged is “the evidence is on the encrypted disk.” How do you know that? Most often, you have a situation with the conditions:

      – We have reason to believe that X has evidence of Y, and
      – X has an encrypted disk

      But the two do not magically combine to “evidence of Y is on the encrypted disk that X has”. If the Courts can compel a person to disclose his encryption key, then the demand must be met by a standard of evidence greater than “we know he has it somewhere”.

      1. The question also arises, what if revealing the encryption key would incriminate X? Say the key’s being demanded for a civil suit, but the disk contains evidence that X killed someone. Why would the Fifth Amendment protection against self-incrimination not apply?

      2. What if they did? That is always going to be a risk. But sometimes they won’t. And that is the issue we are talking about here. It is also a question of the appreance of justice and fairness. Take the example of the lunatic in California’s Iphone. What if the FBI had tried to charge one of his relatives or friends with being a part of the conspiracy and the relative said the Iphone had notes on it that showed he wasn’t a part of it. Even if that were not true, we would never know that if we didn’t get to the iphone. And there would always be a cloud over his trial. It would put the court in the position of letting a man who appeared to be guilty go free or risk wrongly convicting an innocent man because the exculpatory evidence wasn’t there.

        My point is there is more to this than privacy. This is about the courts’ ability to lawfully obtain evidence. And that is about due process not just privacy. You recognize the right to get the information with a warrant don’t you? If you do, then how can you be so positive about technology that allows people to make information unrecoverable by any court? I assume you are not okay with people destroying evidence and defrauding the courts right?

        1. Are you reading what I’m writing or are you just giving a monologue? Why don’t you read what I wrote again, all of it, and respond meaningfully to it without assuming bad faith.

        2. Also, the courts generally can’t unilaterally impose a ban on everyone. That’s a legislative function, provided the legislature has the power. There are many questions here and whinging about vague abstractions doesn’t really address any of them.

    3. “What if the encrypted material is evidence of real government malfeasance?”

      The government hides things all the time behind misuse of classification and sensitive but unclassified caveats. The practice is so common, it is specifically forbidden by the Executive orders covering the use of such markings.

      The government doesn’t need encryption to hide stuff, they just have to deny FOIA requests.

    4. They basically responded to this already. A warrant gives them the authority to seek out what they’re looking for, but it doesn’t follow that the government therefore has the authority to limit everyone’s rights to make it more likely that it’s able to find what it’s looking for when it does have a warrant. It can try, and it can fail. A warrant simply grants it the ability to try; it doesn’t mandate that it must succeed at all costs. Sometimes bad guys get away. This is far more preferable than the government infringing upon our fundamental liberties merely so it can stop more bad guys.

      But too often Reason acts like it is an entirely one way debate. It is not.

      But it is, unless you think that stopping Bad Guys is more important than freedom. Given the topic, that’s what this is really about.

      Any calls for government-mandated backdoors and such must be immediately ridiculed and labeled as foolish, unconstitutional, and anti-freedom. We’ve had this debate countless times already, so it’s just tiring.

  6. That’s the thing about party platforms: if there is something fucked up in it, you can be reasonably sure that the party will try it’s best to do it. But something good, like abiding by Constitutional protections? They’ll ignore that part.

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