Bad Crypto Bill is Bad: My Letter to Sen. Feinstein
I wrote a letter to my Senator, Sen. Feinstein, about the anti-crypto bill she and Sen. Burr released last week. I’m publishing it here so you all can read it too.
My name is Erich S* and I live and work in San Francisco. I am writing to express my concern with the recent bill you and Sen. Burr have introduced, the Compliance with Court Orders Act of 2016. I am particularly concerned with the dogmatic repetition of the concept that “nobody is above the law.” Earlier this week, Sen. Burr stated in response to vehement opposition to the bill, “What it tells me is that [the tech community is] using the same tired argument, because this bill basically says nobody is exempt from the rule of law.” Furthermore, section 2(1) of the Act states “It is the sense of Congress that . . . no person is above the law.”
This is alarming on a fundamental level. The Fourth Amendment’s exclusionary rule was created because we, as a society, have decided that holding law enforcement to a strict Constitutional standard is more important than convicting one more person. The disincentive to police officers skirting warrant requirements affirmatively excludes damning evidence, allowing defendants to avoid conviction. In this sense, these criminal defendants are “above the law,” as I have understood your bill and your colleague’s language.
Another example, similar to the Fourth Amendment’s exclusionary rule, is the Fifth Amendment’s privilege against self-incrimination. This, too, forces prosecutors to bear the burden of proof (which is proper) rather than using the power of the court and the state to coerce a defendant into revealing self-incriminating testimony. This is not without limits: We know that voice samples, fingerprint samples, and handwriting samples are not within the umbra of this Fifth Amendment right. However, there are certain areas of law in which it is more important to protect individual rights and civil liberties than it is to permit the government to exercise more power over those within its jurisdiction.
I believe it is vital to the function of a democracy for legislators to listen and honestly consider the arguments and statements of their constituents, both directly (i.e., California residents) and indirectly (i.e., people who live under the United States’ jurisdiction). The bill is overbroad, which is why the tech community’s response has been so emphatic and vigorous. It is overzealously fixated on crime control to the detriment of several other aspects of civil life and liberties, such as individual privacy, consumer and personal information security, financial- and health-related security of information, and the First Amendment’s guarantee of freedoms of speech and association.
From public debates about section 215 of the USA PATRIOT Act (the NSA’s metadata collection program) we can see that there is a chilling effect on speech and association, regardless of whether the subject had actually been the target of metadata collection. There would be a similar chilling effect here, where the mere potential that people’s private communications may be accessed and made public during an as-yet-unforeseen court proceeding is enough to chill, or even eradicate, certain topics from conversation. You may argue that people can always communicate in person, but that expectation would unrealistic, and in response to that argument I would present my own experience as one that is indicative of the common experience:
I live within two miles of my girlfriend. We work within five miles of one another. We have been together for a significant amount of time, and we see one another nearly daily. And still, we conduct a remarkable portion of our conversations over electronic media of one kind or another, nearly all of which use some form of encryption that would be weakened by this bill.
I do not wish to rely too much on the 215 conversation, but it merits further discussion: we are aware of government misuse of these data. NSA operatives have used their agency’s capabilities to surreptitiously surveil former romantic partners and spouses. The risk of government misuse, embarrassing as it is, deserves acknowledgement.
That no person should be treated differently to is imperative to our democracy, and I think this is what you intended to communicate with § 2(1) of the bill. But the conversation must include the government’s action; it cannot focus on the citizenry alone. The Founders wrote the Fourth and Fifth Amendments with the idea that law enforcement and government officials must be held to the same, if not higher, standards than the general public. This bill attempts to create space for law enforcement that would reverse this mandate.
These are my concerns, and I look forward to discussing them in greater detail with you or a member of your staff in the future.