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Why We Must Defend Encryption

— February 24, 2016

You are allowed no secrets.

The Obama administration announced Monday that an attorney representing unspecified victims of the December 5 San Bernardino mass shootings will, upon the administration’s request, file a brief supporting a court order to compel Apple Inc. to provide the government a “back door” to its iOS operating system. The Federal Bureau of Investigation (FBI) has for months sought access to encrypted data on the cell phone of Syed Rizwan Farook, one of the shooters in the attack at San Bernardino’s Inland Regional Center. Just last Friday Obama’s Justice Department filed a brief demanding that Apple comply with the February 16 order by a federal judge to create a system allowing the FBI access to encrypted data stored on its smartphones.

The great independent journalist I. F. Stone, writing about a 1949 Supreme Court case upholding the right to inflammatory speech, wisely observed, “Almost every generation in American history has had to face what appeared to be a menace of so frightening an order as to justify the limitation of basic liberties […] Each for various people seemed to provide compelling arguments for suppression, but we managed to get through before and will, I hope, again without abandoning basic freedoms. To do so would be to create for ourselves the very conditions we fear.”

Stone understood free speech to involve an inherent risk—the risk that we will hear something we find offensive, the risk that someone will give voice to dangerous ideas, and the risk that someone will incite someone else to do real harm. Freedom, he insisted, is worth that risk.

What would Stone make of the “War on Terror” and, specifically, of the Obama administration’s concerted efforts to compromise, perhaps eventually criminalize, the encryption of data? Certainly he would recognize and oppose it as an attempt to “chill” free speech. A “chilling effect” is a legal term for the simple idea that when we are watched, we watch what we do and what we say. And the administration’s attack on encryption, married as it would be to the all-encompassing NSA spying program, indicates a clear determination to watch us.

We have been told that the NSA’s collection of citizens’ electronic “metadata”–who we call and when—is undertaken for our own good, to protect us from future attacks by terrorists. But it is a program imposed upon us, not one devised and voted upon by our representatives, and until the revelations of whistle-blower Edward Snowden it was a secret program. A secret kept from us citizens as well as from those who represent us in government. Only cynical legalistic contortions could argue for the legality or the constitutionality of such a program. To call it by its proper name, it is an instrument of totalitarianism, a surveillance program unparalleled in scope in human history. That the Obama administration is now battling Apple in court for access to encrypted data reveals just how dedicated our rulers are to total surveillance, not only of all metadata, but of all content of electronic communications.

Make no mistake, as Obama is fond of saying, the access the administration seeks is not solely to one cell phone. Despite the assurances of FBI Director James Comey and friend of the White House Bill Gates, the administration has long been pursuing an agenda to defeat the encryption of data. “They are not asking for some general thing, they are asking for a particular case,” said Gates in an interview with the Financial Times. And Comey has written that “the San Bernardino litigation isn’t about trying to set a precedent or send a message.” Gates and Comey are lying.

In fact, in 2015, Congress was preparing legislation, supported by the White House, to require software companies to provide “backdoors” that would allow the government access to encrypted data. Public resistance to surveillance led the White House to forgo pursuing the legislation. However, in an August e-mail that was obtained by The Washington Post, the intelligence community’s top lawyer, Robert S. Litt, wrote that although the legislative environment is very hostile today, it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.” The mass shooting in San Bernardino provided Litt and U.S. intelligence agencies just such a scenario. With public perception affected by the San Bernardino shooting and by the intentional visibility with the FBI has conducted its case against Apple (including Comey’s appeal to the public to trust him), the White House has revived last year’s legislation. It is encryption itself the White House is targeting. Which is to say, it is privacy itself that is the enemy. Consider Comey’s term for the use of encryption: “going dark.”

Even the capability the feds seek in their court case extend far beyond Farook’s cell phone itself. The FBI has demanded that Apple write a version of its operating system that would unlock the encryption feature not only on Farook’s but on all smartphones. In other words, they are asking not for a key to Farook’s data but for a skeleton key to all encrypted data on all smartphones everywhere on which the encryption software was installed.

The bigger picture is that the government continues its attempts at what former Bush administration Attorney General John Ashcroft called “Total Information Awareness.” The seeming outlandishness of such a term and such a proposal in 2002 has by 2016 given way to actual government programs and court cases such as the one between the FBI and Apple. Various polls have shown 51 percent and 35 percent of Americans support the unlocking of Farook’s cell phone. I suspect that most of those responding to such polls understand neither the context of this particular front in the war over encryption nor the the actual facts of this case. Should the FBI and White House prevail over Apple in this case, we will have taken one more step down the road to living in a totalitarian police state, a road carefully laid since 2001 and now close to completion.

The term “we” in I. F. Stone’s warning that “we” could become the danger we fear comprehends the American people and the American government, together. Despite his famous dictum that “all governments lie,” and despite his savvy understanding of the workings of power, to my knowledge he never publicly took that decisive step of divorcing “us” from them. We, the people—a phrase heard more and more frequently—must face the disheartening reality that we are the enemy for which the government is preparing its traps. Their interests are not our interests, and it is we who, in their eyes, are the potential terrorists. We threaten their system of control, their very hold on power. Until we recognize this fact, we will continue to accede to their outrages—their torture, their warrantless searches and seizures of information, their indefinite detention, their drone killings with warrant or trial. To combat this evil—a word I weigh carefully—we will need to protect what our very dignity should demand: our privacy, our freedom of speech, and our freedom of the press. All of these rights, as we call them, are in this moment under direct attack.

Sources: World Socialist Web Site. “White House spearheads assault on cell phone encryption” “How the NSA Spying Program Works” “Chris Hedges and Bill Binney on NSA Guidelines”

World Socialist Web Site. “The assault on encryption and the drive to expand police state spying” “FBI director makes personal, passionate plea on Apple-San Bernardino controversy” “Solid support for Apple in iPhone encryption fight: poll”

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