How Does This End Well?
The current encryption privacy-security debate has become scary silly. As with many polarizing issues, both sides in the debate seize every opportunity to escalate the rhetoric, advancing their viewpoint while chastising opposing views. You are either with us or against us. The issue is black and white. But it is not.
On the one hand, we can all intuit the difference between zero and 100 percent privacy and the implications. Between these extremes what constitutes an acceptable percentage or degree of privacy in a given situation is, to say the least, tricky. Consequentially, in the U.S., such determinations have been the province of the courts, with special attention to the Constitution.
On the other hand, we can all intuit what the difference is between zero and 100 percent security and the implications. Again, between these extremes what constitutes an acceptable percentage or degree of security in a given situation is tricky. While such determinations have been the province of the courts, attention is not solely given to the Constitution. Legal attention also goes to statues, executive orders, and, as with post-9–11 excess, simple administrative and or bureaucratic memos.
There are no laws only judges
Every country has laws. But no law can be written to be unequivocally clear in covering every possible situation. It is, in part, why we have judges and promulgate new laws. Invariably, however, in a disputed situation, judges get first bite of the apple to determine the applicability of a given law to it.
Every country has judges. The first duty of a judge, however, is not “justice.” Rather, it is to secure and or advance the fortunes of the political system s/he represents. Only secondarily, and usually in extraordinarily egregious abuse of power cases, do judges contravene the prerogatives of political elites (e.g., Nixon tapes).
Setting aside obvious concerns about the conscious and unconscious biases any jurist brings to a case, the end result or decision is, regardless of its reasoned character, an “interpretation.” For anyone versed in past U.S. Supreme Court decisions, for example, interpretations can be arbitrarily framed, rhetorically twisted, precedents contorted, or plain wrong (e.g. Dred Scott, Plessy v Ferguson, Japanese internment).
What a long strange trip it has been
That it is the duty of our government to protect us — citizens and our way of life — from threats, both foreign and domestic, is self-evident. Throughout most of U.S. history the principle foreign threat was other countries. Meanwhile, the primary domestic threat was organized crime (e.g., political corruption, mafia, KKK) as distinct from random individual criminal acts — aka, lone wolf.
The line between foreign and domestic threats blurred during the Cold War. As a global ideological struggle, domestic threats could be both organized and individual criminal acts. Ultimately the novelty of this threat situation escalated to an epithet as McCarthyism — an era aimed at restricting political ideas, dissent and free speech with unfounded accusations meant to damage individual reputations and lives through the use of abusive investigative techniques.
In today’s hyper-connected world, the rise of terrorism has erased all distinction between foreign and domestic threats and the potential for both organized and random criminal threats and acts. As a consequence, politicians, government officials and law enforcement fear they are behind the curve playing catch up. Thus we find the rhetoric and investigative techniques have again become controversial (e.g., FBI vs. Apple)
The only thing we have to fear is fear itself
Clearly, civilization has reached a point where there are no tangible barriers to terrorist acts. Worse, between evil imaginations and the ubiquity of ways to kill and maim unsuspecting innocent civilian people, everyone is now vulnerable everywhere, all the time.
Terrorism is psychological warfare — to create fear. Sadly, we have reached a stage in our evolution where this fear is constantly present. Setting aside the root causes of such acts, there are only two ways to combat this behavior. One is for public official and media to keep this fear in perspective. The other is through the adroit use of intelligence and law enforcement capabilities. At the present we are doing neither.
Framed as patriotism, politicians, government officials and law enforcement have all entered into what is best described as a Faustian bargain — a shortsighted career bargain that demands they not be faulted for any highly visible terror attack. Visible is the operative word here. For example, there is now an absurd bill moving through the U.S. Congress aimed at making all encryption illegal. This is dangerous on a grand scale.
Dumb and dumber
Of course, all technologies are double-edged swords. Just as terror has gone global, intelligence and law enforcement communities globally have integrated their activities to an unprecedented level. To be sure, jurisdictional, legal, ideological, and career issues still arise as obstacles to absolute integration. Nonetheless, the direction is unmistakable.
Rarely these days are those stoking the fear of evil doing so in the manner of McCarthyism. There is, however, a tripartite ‘fear-industrial complex.’ Despite Eisenhower’s warning in his farewell address, the military-industrial complex is doing quite fine, thank you. Unfortunately for the rest of us, this complex is now joined at the hip with the security-industrial complex.
And, of course, media outlets love big fear-based events that drive ratings and sell advertising. As they say, ‘if it bleeds, it leads.’ In the competitive 24–7 news cycle with ever more communication channels, fear generates the greatest amount of attention regardless of whether it is warranted or not.
Rationally, the number of people killed or maimed by preventable causes (e.g., bathroom falls, food poisoning, medical malpractice, and so on) dramatically dwarfs those from terrorist acts. But these deaths and injuries are not exciting real-time fear-based dramas. Rather they are boring topics requiring a serious commitment of time and resources to present and follow in a useful manner. Forgetaboutit.
If I had a hammer, I’d hammer in the morning, I’d hammer in the evening, all over this land.
The obvious question then is, “where is all this going?” Are we to fear every mentally deranged person, every disgruntled worker, every self-righteous ideologue, and every fundamentalist? If so, the only way we can ever stop them from regularly grabbing media attention is to watch everyone all the time.
Unfortunately, based on NSA and other law enforcement revelations we are using technology to do just that. Consequently, the end result is, at best, covert repression. That is a marginally disguised panoptic police state with total mass surveillance capabilities, zero real privacy and extreme vulnerability to selective prosecution.
Problems with mass surveillance start with the fact that compared to past specific probable cause approaches to preventing crimes, there is scant evidence it is actually superior. Additionally, as evidenced in the Middle East, as bad guys become aware of mass surveillance their behavior becomes more covert and surreptitious, and thus harder to detect. To counter this threat requires an ever larger security force present at every virtually public venue all the time, maybe in every home (think the Internet of things). If so, eventually, everywhere starts to resemble life in Israel — just worse.
Granted, as technology continues to improve, one can be certain we can reach something akin to a pre-crime Minority Report scenario. Of course, as in the movie, this requires absolute trust in those administering such programs.
But, based on history, how could anyone in their right mind be willing to place such awesome absolute power in the hands of a career politician or government official? All we need is one new McCarthy or Nixon like figure to ascend to the executive office or NSA, and all bets are off.
“You’ve gotta ask yourself one question: ‘Do I feel lucky?’”
In an earlier non-digital world, people could hide information with oral conversations, disposable pieces of paper, and the use of public phones. Back then, government and law enforcement needed probable cause to secure a warrant to invade someone’s privacy.
But we are no longer in Kansas. Nor are we on Tralfamadore. We live in this weird netherworld. It is an unexplored purgatory where we all await a resolution to either the benevolence of our chimeric artificial intelligence overlords or a conscious acceleration of economic and political change to mitigate the appeal of terrorism. Of course, the former is an extremely risky bet for all the marbles. Unfortunately, the latter requires real vision and true leadership to foster a collective intelligence that has a passion to evolve and is totally unprecedented.
On the other hand, as we keep developing more cheap portable weapons of mass destruction, we could succeed in making this current encryption privacy-security debate moot.
So, a simple question: Please, tell me how this all ends well?
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