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.