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The Democrats are Dropping the Ball on Apple's Encryption Case

I’ve been following the Apple/FBI encryption case for a few weeks now, and suddenly wondered, what are the Democratic contenders saying about it?

Illustration for article titled The Democrats are Dropping the Ball on Apples Encryption Case

It turns out, not much. The Republicans all leaped gleefully on an opportunity to talk about terrorists and how they’re gonna kill their families and pets and waterboard their phones. But the Democrats have said little, if anything. And what they have said isn’t giving me a lot of confidence that they understand the stakes... At the debate Sunday, January 17th, a Youtube personality, Marques Brownlee asked:

“Tech companies are responsible for the encryption technology to protect personal data, but the government wants a back door into that information. So do you think it’s possible to find common ground? And where do you stand on privacy vs. security?”


At the time, O’Malley was still running:

“I believe whether it’s a back door or a front door that the American principle of law should still hold that our federal government should have to get a warrant, whether they want to come through the back door or your front door,”


Ok, that’s pretty dumb. The issue is not whether they government has a warrant, but whether, in the process of serving a legal warrant, they can compel the manufacturers of encryption software to break their products. It’s like he said, “the federal government should have to get a warrant whether they come through your door or burn your house down.” Not comforting!

Sanders was not much better:

““I voted against the USA Patriot Act for many of the reasons that Governor O’Malley mentioned. But it is not only the government that we have to worry about, it is private corporations. You would all be amazed, or maybe not, about the amount of information private companies and the government has in terms of the websites that you access, the products that you buy, where you are this very moment.”


Uh, yeah. That’s kind of why it matters so much whether or not you think the government should be able to compel those companies to break the walls they’ve made to keep hackers, government officials and predatory corporate interests out. I wish he’d touched on that instead of just reiterating that data about you exists.

And... Clinton:

“We need better intelligence cooperation, we need to be sure that we are getting the best intelligence that we can from friends and allies around the world,”


Well, I can at least congratulate her on rephrasing the government trying to force companies to crack their own code as “better intelligence cooperation.” Kind of like how “torture” was an “enhanced interrogation technique”.

Democrats, you can do better than this, and you must. Maybe you’re saving your best ideas for later, in the general election, when you will be talking to someone who may be speaking seriously about waterboarding a dog. But it would also be good now. As a voter, I am really concerned about this issue and would like to see it addressed directly, not obliquely. And if you lay some groundwork now, you can make sure that your supporters are knowledgeable enough to explain your position to potential voters.


Bernie, you’ve made a name for yourself as a politician who stands for empowering people. And your answer I quoted above is actually the one that comes closest to the answer I want to hear: corporations do wield a lot of power. Our online behavior is tracked and logged, often without our knowledge or explicit consent, generating data that can be used maliciously by government agents, companies and hackers. It is imperative that we understand the risk here, if we do not act quickly to support companies that want our privacy to be protected. Apple is doing the right thing here by standing up for their customers, even if many people do not understand why they won’t just jump through any hoop labelled “FIGHTING TERRORISTS”. And you actually have a history here, where you took an unpopular position in the name of protecting freedom. That’s what you did when you voted in 2005 to protect gun manufacturers and sellers from liability if their firearms were used to commit a crime.

Now, liberals and progressives have spoken out against this and Clinton is using this vote against you, but you have an opportunity here to highlight your consistency. You can show how you have worked to protect individuals from a government that opportunistically wants to curtail our rights in the name of safety and fighting terrorism. You can talk about the importance of not giving in to fear when we allow the use of powerful tools like firearms and encryption, tools that law abiding individuals rely on and use responsibly every day. And you can use this to symbolically speak to both sides of the aisle about the importance of defending our rights against the mission creep that often pulls our government into despotism.


I’m not leaving you out here, Hillary. You also have an opportunity here. You have faced heavy criticism from progressives about being “corporate” and part of the establishment. Many people use your husband’s accomplishments as president as proxies for your views. So here is a chance to make a unique stance for yourself: you can stand with companies that will stand up to government overreach. You can show off your tech savvy by pointing out how you valued your own private communications as Secretary of State, and that you trust that most people’s private messages should be allowed to stay private. Most importantly, you can point to a court case that took place under Bill’s administration, that actually shows a kind of precedent to exactly the question facing Apple and the FBI. It’s called Bernstein Vs USDOJ.

In the 1990s, the internet was just getting started and encryption software was regulated like nuclear warheads. A graduate student at UC Berkeley had written an encryption program called “Snuffle” and was being forced to register as an international arms dealer if he wanted to publish it or give lectures that may be attended by foreign students. The judge ruled against the government, claiming that the Arms Control Act that had ensnared this student was an unconstitutional prior restraint on free speech. This is important because it shows the First Amendment can apply to encryption products and their creators.


The relevant part is here:

“Second, we note that the government’s efforts to regulate
and control the spread of knowledge relating to encryption
may implicate more than the First Amendment rights of cryp-
tographers. In this increasingly electronic age, we are all
required in our everyday lives to rely on modern technology
to communicate with one another. This reliance on electronic
communication, however, has brought with it a dramatic dim-
inution in our ability to communicate privately. Cellular
phones are subject to monitoring, email is easily intercepted,
and transactions over the internet are often less than secure.
Something as commonplace as furnishing our credit card
number, social security number, or bank account number puts
each of us at risk. Moreover, when we employ electronic
methods of communication, we often leave electronic
“fingerprints” behind, fingerprints that can be traced back to
us. Whether we are surveilled by our government, by crimi-
nals, or by our neighbors, it is fair to say that never has our ability to shield our affairs from prying eyes been at such a low ebb. The availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of
cryptographers intent on pushing the boundaries of their sci-
ence, but also the constitutional rights of each of us as poten-
tial recipients of encryption’s bounty. Viewed from this
perspective, the government’s efforts to retard progress in
cryptography may implicate the Fourth Amendment, as well
as the right to speak anonymously, see McIntyre v. Ohio Elec-
tions Comm’n, 115 S. Ct. 1511, 1524 (1995) , the right against
compelled speech, see Wooley v. Maynard, 430 U.S. 705, 714
(1977), and the right to informational privacy, see Whalen v.
Roe, 429 U.S. 589, 599-600 (1977). While we leave for
another day the resolution of these difficult issues, it is impor-
tant to point out that Bernstein’s is a suit not merely concern-
ing a small group of scientists laboring in an esoteric field, but
also touches on the public interest broadly defined.”


You can portray yourself here as a defender of the same rights to free speech and privacy that allows abortions, protest and robust encryption. You can point to your own opinion as an evolution over time that shows greater understanding and respect for our tech industry than any politician had in the 90s. And you can help usher in an era where Democrats are standing up for the rights of everyday people, for businesses that rely on online commerce and for companies that create the networks that keep our data secure.

I realize that this issue is confusing and nerdy, but these are the decisions that will shape the future of our country. These are the cases our grandkids and kids will study in school. And this is the moment when we can make the right choice. This is a chance to lead.

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