Fair points.
Ryan Hagemann
22

Except law enforcement isn’t really “going dark,” though it certainly serves as an effective bumper sticker slogan for the FBI’s PR purposes. Again, law enforcement has more access to more streams of information than ever before in all of human history. Remember, there was a time when we didn’t have phones, nor the ability to wiretap. Yet somehow law enforcement continued to do its job. As technology adapts, so too will law enforcement.

And yes, CALEA required all phones and telephone lines to be wiretap-ready for the lawful issuance of wiretap orders. However, that was a law meant for a time when the public switch telephone network was a centralized system of control. But the Internet age is one of decentralization. And sure, Congress could mandate a similar scheme, maybe by updating CALEA or by other means, with ISPs and content/service providers like Apple, Google, and Facebook. But the key here is the argument that “you have to allow us access when we need it, otherwise you can’t offer your services” is a death knell to domestic encryption, which as I’ve argued previously is a death stroke to the modern digital economy. More to the point, it doesn’t particularly matter if Congress were to impose a general encryption ban, which is functionally what Burr-Feinstein does, because over two-thirds of open source encryption protocols available for use are foreign-based.

I’m not saying law enforcement’s concerns should be disregarded, only that the need to prosecute investigations must inevitably be weighed against other values and trade offs (economic growth, civil liberties, privacy, user security, human rights, etc.). And in my estimation, the costs associated with enacting sloppy and technologically-uninformed legislation like this far, far outweigh any potential, and empirically unverifiable, benefits to law enforcement.

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