President Obama’s comments at the South by Southwest Interactive (SXSW) in Austin this weekend suggest that, once again, he is not a reliable ally for privacy advocates battling back the surveillance state.
Though Obama would not directly address the Apple vs. FBI fight, he weighed in on the issue at length (starting around the 1:16:30 mark through the end of the video above).
While I won’t dissect Obama’s entire encryption remarks here, there are some points in particular which deserve deconstruction.
All of us value our privacy and this is a society built on a Constitution and a Bill of Rights and a healthy skepticism about overreaching government power. Before smart phones were invent invented, and to this day if there is probable cause to think that you have abducted a child or that you are engaging in a terrorist plot or if you are guilty of some serious crime, law enforcement can appear at your door step and say, ‘We have a warrant to search your home.’ They can go into your bedroom and into your bedroom drawers and rifle through your underwear to see if there’s any evidence of wrong doing. […] So we’re concerned about privacy. We don’t want government to be flipping through everybody’s phones willy-nilly, without any oversight or probable cause or a clear sense that it’s targeted at a somebody who might be a wrong doer.
Of course it’s true that the Constitution permits law enforcement to search our things and communications if—and that’s a giant, hugely important if—it follows due process. What Obama is doing with these comments is incredibly deceptive on two counts.
First, privacy advocates are not suggesting that police and the FBI should be banned from our digital communications provided they have followed legal procedure and duly obtained a search warrant.
That has never been the civil libertarian position, and it is not what anyone is arguing in regards to the Apple case or encryption more broadly. What’s actually at issue is whether it is possible to give the government the access it wants without losing the far greater good of strong encryption for billions of people world-wide (spoiler: it’s not possible, but more on that below).
Second, note the four ways Obama says the government shouldn’t be looking through people’s phones: “willy-nilly, without any oversight or probable cause or a clear sense that it’s targeted at a somebody who might be a wrong doer.” The first one (willy-nilly), is colloquial and communicates that he’s about to make a strong statement for privacy. The next two (oversight and probable cause) reference clear legal realities which civil libertarians support.
But the last one (“a clear sense that it’s targeted at a somebody who might be a wrong doer”) is incredibly vague and has nothing to do with the Constitution or rule of law more broadly. After all, who gets to have this “sense”? Are we searching people’s stuff based on feelings? There are plenty of times when we have had a “sense” that someone is guilty of a given crime and then it turns out they aren’t guilty after all.
Maybe Obama didn’t mean to slip in that fuzzy language, but maybe he did. Either way, it is telling that a self-proclaimed civil libertarian (and former constitutional law professor) would suggest that suspicion alone—not specific evidence or due process procedure—could count as a reason to target someone for surveillance.
Let’s face it, the whole Snowden disclosure episode elevated people’s suspicion of this. … I will say by the way, that—I don’t want to go too far afield—but the Snowden issue vastly overstated the dangers to U.S. citizens in terms of spying, the fact of the matter is that actually our intelligence agencies are pretty scrupulous about U.S. persons people on U.S. soil. What those disclosures did identify were accesses overseas with respect to people who are not in this country. A lot of those have been fixed…
Uh, no. This is a bald-faced lie. The NSA definitely did spy on Americans—a lot—and it’s been doing so since before Edward Snowden was even born. (It spied on Martin Luther King, Jr., for instance.)
Obama’s lie here is particularly egregious given that just last week we learned that his administration is loosening the rules for the NSA to share data about Americans with other law enforcement agencies, even when it has nothing to do with national security.
So we have two values both which are important, right? And the question we now have to ask is, if technologically it is possible to make an impenetrable device or system where the encryption is so strong that there’s no key, there’s no door at all, then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have available that even do simple things like tax enforcement? Because if in fact you can’t crack that at all, government can’t get in, then everybody is walking around with a Swiss bank account in their pocket.
So there has to be some concession to the need to be able to get into that information somehow. Now, what folks who are on the encryption side will argue is any key whatsoever even if it starts off as being directed at one device, could end up being used on every device. That’s the nature of these systems. …
My conclusion so far is that you cannot take an absolutist view on this. So if your argument is strong encryption no matter what and we can and should in fact create black boxes, then I think does not strike the kind of balance that we have lived with for years. And it’s fetishizing our phones above every other value. And that can’t be the right answer.
For starters, we all know this isn’t primarily about dramatic cases of child abuse and terrorism. It’s more likely to about the drug war and, yeah, probably some tax evasion.
Moreover, what Obama is saying here is technologically nonsense, as Jenna McLaughlin explains at The Intercept. “[T]he problem is that you can’t have strong encryption without it being unbreakable,” she says.
“Trying to come up with some solution that satisfies the desire for easy, ubiquitous law enforcement access while simultaneously upholding device security is what scientists call a ‘magic pony.’ Any hole for the government is a hole that criminals and foreign adversaries could exploit, too.”
Furthermore, wanting strong encryption is no more “fetishizing” our phones than getting a good safe is fetishizing our paperwork. Sure, the technological situation is different, but the point is the same: If you made a safe with a special police key, criminals would sooner or later duplicate that key for themselves.
The point of a safe is that there is no easy access no matter who you are. The point of encryption is exactly the same.
That’s the whole issue of this debate. The middle ground Obama wants doesn’t exist. Either you have encryption or you don’t.
[W]e make compromises [between liberty and security] all the time. I haven’t flown commercial in a while, but my understanding is it’s not great fun going through security. But we make the concession because—it’s a very a big intrusion on our privacy—we recognize it is important. We have stops for drunk drivers. It’s an intrusion but we think it’s the right thing to do. And this notion that somehow our data is different and can be walled off from those other trade-offs we make, I believe is incorrect. We do have to make sure given the power of internet, how much our lives are digitalized, that it is narrow and constrained and there’s oversight.
Maybe it’s that lack of commercial flights and accompanied groping which is confusing Obama here, but “we” are not actually cool with the concession against privacy known as the TSA. “We” do not think it’s the right thing to do. “We” likewise do not think haphazardly subjecting all drivers to warrantless search on the grounds that maybe one of them is doing something wrong is worth it.
Any president who actually governed from the conviction that “this is a society built on a Constitution and a Bill of Rights and a healthy skepticism about overreaching government power” would know that.
I don’t know about you, but I have a clear sense that Obama does not.