FBI Director: Mobile encryption could lead us to ‘very dark place’ by Charlie Osborne.
Opps! Looks like I mis-quoted the headline!
Charlie got the FBI Director’s phrase right but I wanted to emphasize the cost of the FBI’s position.
The choices really are that stark: You can have encryption + freedom or back doors + government surveillance.
Director Comey argues that mechanisms are in place to make sure the government obeys the law. I concede there are mechanisms with that purpose, but the reason we are having this national debate is that the government chose to not use those mechanisms.
Having not followed its own rules for years, why should we accept the government’s word that it won’t do so again?
The time has come to “go dark,” not just on mobile devices but all digital communications. It won’t be easy at first but products will be created to satisfy the demand to “go dark.”
Any artists in the crowd? Will need buttons for “Going Dark,” “Go Dark,” and “Gone Dark.”
BTW, read Charlie’s post in full to get a sense of the arguments the FBI will be making against encryption.
PS: Charlie mentions that Google and Apple will be handing encryption keys over to customers. That means that the 5th Amendment protections about self-incrimination come into play. You can refuse to hand over the keys!
There is an essay on the 5th Amendment and encryption at: The Fifth Amendment, Encryption, and the Forgotten State Interest by Dan Terzian. 61 UCLA L. Rev. Disc. 298 (2014).
Abstract:
This Essay considers how the Fifth Amendment’s Self Incrimination Clause applies to encrypted data and computer passwords. In particular, it focuses on one aspect of the Fifth Amendment that has been largely ignored: its aim to achieve a fair balance between the state’s interest and the individual’s. This aim has often guided courts in defining the Self Incrimination Clause’s scope, and it should continue to do so here. With encryption, a fair balance requires permitting the compelled production of passwords or decrypted data in order to give state interests, like prosecution, an even chance. Courts should therefore interpret Fifth Amendment doctrine in a manner permitting this compulsion.
Hoping that Terzian’s position never prevails but you do need to know the arguments that will be made in support of his position.