Spooky rhetorical flourishes have become commonplace in the debate about encrypted communications. We are told that the FBI is “going dark;” that “warrant-proof” communications are proliferating; and that terrorists and criminals are operating en masse and with impunity. But are evildoers really foiling law enforcement’s ability to investigate their crimes?
Never mind that “warrant-proof communications” is a gross misnomer. After all, flush toilets, paper shredders, and small fires are all means of “warrant-proofing” information one wishes to hide from law enforcement. Talk of “going dark” misleadingly suggests that police and state officials currently lack investigatory tools that could bring heinous crimes to light.
It’s true that encryption is frustrating some investigations. But, for the most part, these investigations do not concern the worst kind of crimes. In fact, it’s not terrorists, murderers, rapists, and pedophiles who are frustrating law enforcement investigations with encryption but buyers and sellers of illegal drugs.
Nonviolent drug offenses are far and away the largest category of “major offenses” resulting in the application and use of wiretap orders. In 2014, there were 3,554 wiretap orders issued by state and federal judges, according to the Annual Wiretap Report. Of that total, 3,174 (or 90 percent) of those wiretaps were used for investigations into the use of “narcotics.” In the second place category were “homicide and assault” offences, resulting in a measly 135 intercept orders.
It’s certainly worth considering the role encryption might have played in any of these 135 homicide and assault wiretap investigations. However, with the exception of tragedies like the San Bernardino shooting, most violent crimes are not conspiracies involving intricate planning and advanced technologies. Distributors of illegal narcotics are far more likely to employ such methods in their criminal enterprises. This is especially true when considering the complexity and the amount of money involved in drug trafficking.
Law enforcement’s resources are finite and its methods are limited by the rights of citizens. That’s the way it ought to be in a free and democratic society. Our limited resources shouldn’t be devoted overwhelmingly to investigating crimes that don’t seriously threaten the safety and security of the American people. And it certainly doesn’t make sense to encroach upon the civil liberties of law-abiding citizens in order to catch pill-pushers and weed dealers.
The war on drugs has been a colossal failure by every measure. What’s worse, we now know that these policies were implemented originally not out of concern for public health or moral degeneration but as a means of targeting the Nixon Administration’s political opponents. John Ehrlichman, President Nixon’s former domestic policy chief, told Harper’s Magazine that the intention of these policies was “to associate the hippies with marijuana and blacks with heroin.” By criminalizing the use of drugs, the Administration “could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.”
So it continues. The drug war has always been waged primarily against minority communities. And now the technologies that keep us all safe and secure online are being attacked too.
The real issue in this second Crypto War is not encryption but our priorities. The FBI and other agencies are currently seeking far too many wiretap orders in order to investigate and prosecute largely nonviolent, yet nonetheless criminal, activities. Every dollar thrown at the drug war is a dollar law enforcement could have spent pursuing leads on criminal activities that truly endanger the public.
But even if you consider the war on drugs to be a noble and worthwhile endeavor, its dismal return on investment suggests that the current approach just isn’t working. Education and rehabilitation are wiser and less socially destructive uses of taxpayer dollars. And, as an added benefit, the money law enforcement would otherwise spend on circumventing encryption could be used to investigate other, more dangerous and threatening crimes.
Law enforcement does not have an encryption problem; it has a drug problem. The sooner we break our national addiction to failed drug-war policies, the sooner we can end law enforcement’s misguided resistance to strong encryption.
Op-ed by Ryan Hagemann; originally in RealClearPolicy