Obama is threading the needle with his encryption stance, for good reasons

In the FBI v. Apple fracas, the epithets that have been hurled at president Obama range from hopeless naïf to devilish schemer, to name but the more polite. Indeed, he may be “scheming,” but not in the way that many people think.

When weighing the current “encryption problem,” the US sitting president must appear strong on law and order while defending our civil liberties. It’s a fine line that’s complicated by an awareness that he also must appear “modern,” fully aware of technology’s power and limits. All things considered, I think he’s more than up to to the challenge.

Let’s start with a few assumptions.

The president, a former constitutional law professor, understands that encryption relies on fundamental mathematical truths, just as the Constitution relies on “self-evident” truths. These mathematical truths, coupled with the principles of integer factorization, are the “Constitution” on which various “unbreakable encryption laws” are based.

As the computer-literate leader of the free world knows (recall his 2008 campaign—”How Obama’s Internet Campaign Changed Politics“), unbreakable, open-source encryption technology is available everywhere. Denying this in front of the law-abiding flock won’t prevent the bad guys from using impenetrable cyphers.

Obama also understands that one phone leads to all phones, and then to all of the connected objects in our lives. Cars, thermostats, “security” systems, TVs, Echo voice-operated devices, laptop cameras, and microphones… They’ll all be “warrantable,” sometimes with a secret national security letter or a FISA order.

As a former community organizer and rightly-lauded beacon of sensitivity to civil rights, he surely has calculated the consequences for endangered groups and individuals living under oppressive regimes if the US were to insist on mandatory backdoors.

More materialistically, let’s not forget that Obama has friends in Silicon Valley. It can’t be lost on him that US technology products, laden with a government-mandated Golden Key, would become less attractive to purchasers around the world.

Speaking of Silicon Valley familiarity, Obama knows that you can’t simply conscript Apple engineers to do something they find abhorrent—I have, as counsel would say, “personal knowledge” of the subject. Some Apple coders have already proclaimed that they would rather quit and be welcomed as heroes at Facebook, Google, or, yes, Microsoft. Others would refuse to comply on ethical grounds, citing the Association for Computing Machinery’s (ACM) ethics code [as always, edits and emphasis mine]:

Violation of a law or regulation may be ethical when that law or rule has inadequate moral basis or when it conflicts with another law judged to be more important…

Short of refusal, there’s passive resistance. For Apple engineers, the sweetest revenge against government orders would the classic “Sure, no problem, you’ll have it in two weeks.” Then, a bug crops up, and then another… not intentionally, of course, the critters have a life of their own…

Let’s stop here and turn to president Obama’s talk at South by Southwest last week (full transcript here, video here). With his usual mixture of warm humor and elevating considerations, he begins with reflections on the interplay of government and technology, civic engagement, and entrepreneurship.

Towards the end, however, the tone turns somber as the president takes a question on the Apple-FBI situation. After bringing up the unavoidable “How do we apprehend monsters” question, he concedes the obvious:

Now, what folks who are on the encryption side will argue is any key whatsoever, even if it starts off as just being directed at one device could end up being used on every device. That’s just the nature of these systems. That is a technical question. I’m not a software engineer. It is, I think, technically true, but I think it can be overstated.

Our basketball-enthusiast president then performs a quick Euro step past core questions…

And so the question now becomes, we as a society—setting aside the specific case between the FBI and Apple, setting aside the commercial interests, concerns about what could the Chinese government do with this even if we trusted the U.S. government—setting aside all those questions, we’re going to have to make some decisions […]

…and proceeds to the obligatory fair and balanced position:

I am way on the civil liberties side of this thing. […] But the dangers are real. Maintaining law and order and a civilized society is important. Protecting our kids is important. And so I would just caution against taking an absolutist perspective on this.

No absolutism, absolutely no exceptions.

This won’t do. The privacy of diplomatic pouches is absolutely protected; so are a journalist’s sources and notes, as are the conversations between FBI director James Comey and his attorneys while he was preparing to plead ignorance and incompetence in his Mar. 1 testimony before the House Judiciary Committee. Invoking case-by-case First Amendment exceptions is inapt; one cannot compare them to the catastrophic consequences that backdoors would create in our private lives and businesses.

The discussion then takes an even darker turn:

[…] what you’ll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed, and it will go through Congress in ways that have not been thought through. And then you really will have dangers to our civil liberties

President Obama is right to caution us: There’s a long history of police organizations bristling at the limitations imposed upon them by our Bill of Rights. When something really bad happens, officials prey on our aroused emotions to sneak bad laws into the books. In France, these are called lois scélérates—evildoer laws. Right now, the French are having a go at such reactionary legislation after the Nov. 13th attacks.

The new enforcement tools are almost always abused, even if the abuse is couched as part of a greater good. One such bad example is the civil forfeiture provisions that are used to seize cars and money outside of the usual due process in order to beef up a police department’s budget so that evildoers can be more effectively thwarted:

Proponents see civil forfeiture as a powerful tool to thwart criminal organizations… since it allows authorities to seize cash and other assets resulting from narcotics trafficking. They also argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is, directly converting bad things to good purposes by harming criminals economically while helping law enforcement financially.

As Theodore Gray (see his impressive bio) puts it in a moving blog post titled “It Has Happened Before. It Will Happen Again. And It Can Happen Here“:

America has always been at its best when we have been courageous, not when we have cowered in fear. And let’s make no mistake about it: When a country commits outrageous, population-wide violations of long-held rights and freedoms—in response to attacks by individuals and small armed groups that pose no threat to the nation as a whole—that country is acting out of blind fear.

It is beneath the dignity of the great country I live in to act this way.

I have my own relationship with the subject. I was conceived in Berlin in 1943 where my parents were “guest workers,” and born in Paris in March 1944. During my childhood and adolescence, I saw what authoritarian regimes could do to their people. One was only hundreds of kilometers away, not thousands of miles. I knew Stasi stories similar to those recounted in The Lives Of Others. We all saw how the Komitet (KGB) had free rein over the lives of opponents in Russia.

I recall a discussion in a Paris suburb with a hardcore French communist—and equally hard Lacanian psychoanalyst. (Hardcore meant that when the gent went on vacation to the Socialist Paradise, he smuggled in ample supplies of toilet paper and mentholated cigarettes.) When I challenged the Soviet Union’s treatment of dissidents, he pointed to the Federation’s Constitution and its guarantee of individual rights. Of course, such protections didn’t apply to the “enemies of the people,” these had no rights.

France was more mellow, but the party in power abused surveillance tools with great abandon, much to the opposition’s virtuous indignation…until that same opposition came to power and continued the abuse for their own political and even carnal pursuits.

One might argue I’m unduly paranoid until we remember that we have our own sub-persons that we call “enemy combatants,” or until we recall that, for years, the New York Times had a “bug” in its editing software that deleted the word “torture.”

I believe our president understands all of this, that he believes unbreakable cryptography is the lesser of two bad choices… but he must weigh what he says. Can we really expect him to say that the FBI is wrong? Instead, he lets the FBI push hard, absorbs some of the reflected sunshine for pursuing law and order, and allows the San Bernardino case to take the long, arduous road to the Supreme Court. And backdoor legislation will be introduced and discussed and discussed, with the tech industry up in arms—and dollars—against it.

By then, Barack Obama will be a former president, free at last to say what he really thinks. I can’t wait.

This post originally appeared at Monday Note.

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