Law enforcement officials have obscured their motivations for subverting encryption and security on secure devices – it’s rarely about terrorism.
When the government has invoked federal law to force companies to comply with requests to access secure devices, it’s involved drugs and sexual crimes most, according to a chart from the Mercatus Center at George Mason University.
Only once, in the San Bernardino shooting, was the All Writs Act of 1789 invoked for a case involved terrorism.
“Public officials often justify the necessity of such practices as a necessary trade-off between privacy and public safety … However, the data suggest that many of these orders to compromise secure devices are not in fact related primarily with public safety,” Eli Dourado, Joseph Kane, and Andrea Castillo wrote.
Drug cases were responsible for 19 AWA requests, followed by nine sexual crime cases, and six fraud/counterfeiting cases. Of the 63 confirmed requests, 22 were unknown.
“We’re moving to a place where there are warrant-proof places in our life,” FBI Director James Comey said. “That has profound consequences for public safety. And all I’m saying is we shouldn’t drift there,” he argued when testifying about encryption and its effect on law enforcement.
The cynical approach law enforcement has taken to the encryption debate, however, is concerning. Emphasizing the threat of terrorism when law enforcement has targeted drug and sexual crime is a dishonest approach that obscures the reality of security requests. The sleight-of-hand move misleads Americans who are unaware of the costs and benefits of encryption.
“Encryption, while used by terrorists, also protects everyday Americans. Mandated backdoors will make your private information more vulnerable to hacking, will drive tech companies (and jobs) overseas, and won’t stop terrorists who will just as easily procure off-the-shelf encryption technology overseas,” Matt Mayer, visiting fellow for the American Enterprise Institute, wrote.
Government lawyers have “insisted the purpose of the litigation wasn’t to create a legal precedent, but that such extraordinary commandeering was an exception for ‘one phone’ related to terrorism,” The Wall Street Journal wrote. Given the numerous instances of requests, it’s difficult to believe any win for the government in the encryption fight will give them a precedent for any use in the future.