Encryption IS for the children; it's the gift of electronic privacy rights

Top U.S. government officials are freaking out over Apple and Android smartphone encryption plans, using “think of the children” arguments, but why can’t the encryption argument be made "for the children" and for the sake of their future privacy rights?

Encrypt for privacy
Credit: agsandrew

What kind of jerk would want something bad for kids? If you buy what some top U.S. government officials are selling, then the kind of jerk who wants bad things for kids would be anyone supporting encryption. Heck, you don’t even have to be “for” encryption if you have an iPhone or Android since Apple and Android plan to roll out encryption that will protect smartphone data from anyone who doesn’t have the password. What about reversing the “think of the children” argument? Why can’t encryption be seen as “for the children,” for passing down a little bit of guaranteed electronic privacy to kids?

Without naming tech giants by name, U.S. Attorney General Eric Holder said, “We would hope that technology companies would be willing to work with us to ensure that law enforcement retains the ability, with court-authorization, to lawfully obtain information in the course of an investigation, such as catching kidnappers and sexual predators. It is fully possible to permit law enforcement to do its job while still adequately protecting personal privacy.” 

During his speech at the Global Alliance Conference Against Child Sexual Abuse Online conference, Holder added, “When a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.”

But it’s for the children! Sorry, but I’m as tired of that rationalization being used as a reason to justify surveillance and censorship as using the terrorism threat as an excuse. Both were used by FBI Director James Comey in the form of warning about how restricting quick access by law enforcement to a smartphone could cost lives in some kidnapping and terrorism cases. “What concerns me about this,” Comey said, “is companies marketing something expressly to allow people to place themselves beyond the law.”

Sorry, feds, you lost the Crypto Wars long ago and using encryption isn’t illegal. Yet law enforcement agencies didn’t become irrelevant. When peeking through a backdoor into a product wasn’t fruitful, then tools were developed to crack the encryption. That’s a fact also covered during Holden’s speech. “New investigative techniques are enabling us to crack the increasingly elaborate mechanisms that criminals use to mask their identities and conceal their physical locations,” he said. “Collaborative technology is allowing us to identify and help more victims on a global scale.”

Yes, there are some truly sick people in the world. But bad guys are already anti-forensically friendly and use encryption; it’s even rolled into ransomware like Cryptolocker. When talking about online criminals, Holden pointed out, "Many take advantage of encryption and anonymizing technology to conceal contraband materials and disguise their locations." 

Yet in the continuing saga of law enforcement agencies freaking out over Apple and Android’s plans to enable encryption by default on mobile phones, Washington Metropolitan Police Chief Cathy Lanier told Bloomberg, “Smartphone communication is ‘going to be the preferred method of the pedophile and the criminal. We are going to lose a lot of investigative opportunities’.”

When arguing why law enforcement should continue to have easy access to phones, James Soiles, DEA deputy chief of operations, said, “As long as we are doing it with court orders, there shouldn’t be any reason to keep us from it. We want to attack command-and-control structures of drug organizations, and to do that we have to be able to exploit their communication devices.”

Would that be the same DEA that trained federal agents “to ‘recreate’ an investigative trail to effectively cover up where the information originated?”  In “parallel construction,” a “technique used almost daily,” the DEA knows dirt – sometimes via NSA intercepting a tip – and then finds an excuse to exploit it. An example included the DEA advising state police to be at a specific truck stop and a specific time to have a drug dog search a specific vehicle. That set the stage for an investigation to appear like it started because of the traffic stop.

Encryption encourages criminal behavior in the same way that violent video games cause mass shootings. It doesn’t. Millions upon millions of gamers never go on shooting sprees and millions of people using encryption are not doing so to hide terrorist activities, or to conceal child exploitation, or to cloak any crime. In the nexus of exploiting children or participating in terrorism, most Jane and Joe Does are so boring that delving into their lives would put investigators to sleep. Start encrypting metadata and then maybe law enforcement can freak out. Maybe, for the same reasoning that most folks are not doing anything illegal.

Why can’t the encryption argument be made for the children and the sake of their future privacy rights? Article 12 of the Universal Declaration of Human Rights states:

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