In a recent op-ed co-authored with Rep. Mark Warner, Homeland Security Committee Chairman Rep. Michael McCaul discussed the need for “a national commission on security and technology challenges in the digital age.” This commission would bring together a wide variety of stakeholders, from civil society and academia to the technology industry and law enforcement, and would be charged “with generating much-needed data and developing a range of actionable recommendations that can protect privacy and public safety. For supporters of encryption, there is good reason to be cautiously optimistic about this approach.
It might be the best path forward for all parties – especially if the alternative is knee-jerk legislative action like the type recently proposed by Sen. Feinstein. Additionally, the commission could very well put to rest the law enforcement community’s push for backdoor access into encryption.
McCaul and Warner seem to understand the issue at play here, and correctly identify a number of problems that make forced backdoors into encryption both unwise and technically infeasible: (1) “encryption is a bedrock of global commerce … protecting individuals, U.S. businesses, intellectual property and our nation’s critical infrastructure;” and (2) “a U.S.-only solution would likely have only a limited impact and could encourage offenders to simply use technology developed overseas instead.”
It’s refreshing to see McCaul offering a more open-minded perspective on this issue than some other legislators, but more Republican and libertarian-leaning lawmakers must contribute. Encryption can be a tricky issue to understand, given its extremely technical nature, which likely explains why many lawmakers have remained hands-off. But conservatives need to rethink this lackluster engagement, especially in a world that is only becoming more and more technology and software-focused.
Sen. Mike Lee, like many lawmakers, agrees.
Writing in support of strong encryption, he astutely points out that the Fourth Amendment was envisioned as a means of creating “a solid framework for balancing civil liberties with security interests.” He goes on to argue that a mandatory backdoor into encryption “would not substantially improve our national security agencies’ ability to protect the country, and it would jeopardize the American peoples’ liberties enshrined in the Fourth Amendment.”
So how should conservatives think of encryption? The Republican Party’s platform can actually shed some light on this question.
The GOP’s own platform recognizes that a robust and vigorous “economy makes possible our military strength and is critical to our national security.” That vibrancy and strength, as I discussed in a recent research paper, is more and more attributable to the modern digital economy and the trust that proliferates as a result of the use of strong encryption. Supporting encryption means supporting a strong economy, which in turns allows for a strong national defense.
In addition, the platform supports an assurance “that personal data receives full constitutional protection from government overreach and that individuals retain the right to control the use of their data by third parties.” An excellent way of ensuring that constitutional protection is through widely available encryption.
Encryption works for Americans in the digital age, but, as intimated in Lee’s article, it also served our Founding Fathers well both during and after the Revolutionary War.//
The Founding generation was a notable procession of encryption users. Thomas Jefferson, George Washington, John Adams, and Benjamin Franklin, to name just a few, all prolifically employed ciphers in order to keep their correspondences free from the prying eyes of British agents during the Revolutionary War. Even after the founding they continued to use encryption. Jefferson and Adams, in particular, used it in regular communications, fearful that Postmaster General Gideon Granger – a man whose unscrupulous nature earned him a reputation as the J. Edgar Hoover of his day – would use his position to opportunistically seize upon state secrets and blackmail officials. The Founders understood the need for secure communications as necessary for a society to remain open and free, even during peacetime.
Of course, the proliferation of global communications platforms allows todays transnational terrorists to conspire more securely than ever before. However, the issues at stake today are not fundamentally different from those present at America’s founding. As John Fraser noted in a 1997 research paper for the Virginia Journal of Law and Technology: “there is no material difference in regard to the balance of power between the citizens and their government in 1796 versus 1996; the citizens can have the upper hand if they choose to use an excellent cipher.”
It was true in 1791. It was true in 1996. And it remains true in 2016.
“As we work together on these vital challenges,” McCaul and Warner’s oped concludes, “we must never lose sight of our Constitution and America’s core democratic values.” I agree, and would add we should not let fear mongering over possible worst-case scenarios involving encryption misdirect us from recognizing the immense value this technology offers us in the modern digital age. Here’s hoping the Commission champions that perspective.
Op-ed by Ryan Hagemann; originally published in RealClearTechnology