I don’t write about politics often, because I figure it’s not my politics that brings you here, and it’s not my politics that motivated me to write. But once in a while, there’s something that crosses from the land of politics over into the land of sex bloggery and polyamorous/swinging/slutty private behavior. Or that I feel strongly about, or just want to write about. This is some combination of those things.
James Comey, the director of the FBI, recently said some shit that I think merits comment here. In very brief, he believes that Americans shouldn’t be able to have phones that he can’t pry into, that there should be no right to have any zone of complete privacy. He is willing to stipulate that his/the FBI’s access to our phones should be subject to requirements of due process, but he finds the notion that there should be any zone in which information cannot be intercepted anathematic to his view of the needs of law enforcement.
This is an aggressive, expansive view. Historically, we had all sorts of realms to which law enforcement had no access. To begin with, of course, there’s conversation between two people. It wasn’t until fairly recently that law enforcement had the ability, using technology, to eavesdrop. And even then, that ability was constrained to conversations in bugged rooms, with people wearing wires, or over wiretapped phones. For the vast majority of the history of this country, people were free to talk without worrying that the FBI might listen to them. And law enforcement had to do its job – investigating and preventing crime – without access to our private conversations, unless they were able to recruit informants.
Ditto with respect to our movements, and our financial transactions. If law enforcement wanted to know where I was, they had to follow me, or get someone to report on my movements. If they wanted to know what I bought, they had to watch me. With increased technology, our zone of privacy from law enforcement has shrunk and shrunk. CCTV can track me, more and more, with facial recognition technology. I leave a steady trail of credit card receipts everywhere I go. And my phone leaves a digital footprint with literally every step I take.
I’m not taking a view on whether this is good or bad, but it’s notable that Comey’s basic view is that “there should be no law-free zone in this country,” by which he seems not to mean something with which I agree – that we all must follow the law everywhere – but something that sounds very different – that there should be no zone free from the eyes of law enforcement.
And it’s worth being clear: the way we use our phones, we all now carry with us devices that increasingly include comprehensive information about our whereabouts, our companions, our activities, what we read, what we write, what we say, even what we see and hear.
Comey’s insistence on law enforcement’s right/need to have access to all this is dangerous, and ultimately, totalitarian. It’s particularly dangerous to those of us who do things that are non-normative, who fuck people other than our spouses openly, who engage in consensual kinky behavior, who exchange sexy pictures of ourselves with one another. Or who hold politically unpopular views.
Here’s the transcript of his speech, but I thought I’d pull out just a couple of the things he said, and offer my thoughts and reactions.
“Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”
This is a factual statement, but it’s presented as a complaint, a whine. He’s saying that because the FBI has the legal authority to eavesdrop, they should have the technical ability to do so – and that manufacturers should not be free to design products that the FBI can’t access. This seems to me a really complicated argument: it suggests that manufacturers should be limited (constraining their global competitiveness). And it suggests that consumers should be limited in our choices when it comes to engaging in behavior that harms no one.
“… law enforcement needs to be able to access communications and information to bring people to justice….”
He states this as if it is an incontrovertible fact, and perhaps it is, to some. But the way I conceive of our society isn’t that it should be organized around the needs of law enforcement authorities, but rather, that law enforcement authorities should organize their efforts around our society’s needs. I think he has it exactly backwards. What I would say is, “Law enforcement needs to do its utmost to bring people to justice, given the way in which we’ve organized our society.” The emphasis is very different.
“… if the challenges of real-time interception threaten to leave us in the dark, encryption threatens to lead all of us to a very dark place.”
This is where he starts to go from statements of fact and opinion to threats, to attempts to scare us. But I’m sorry: I don’t believe that encrypted phones will make me less safe. In fact, I’m much less concerned about fully encrypted telephone technology than I am about thugs with guns and badges, of whom there are, alas, far too many. This isn’t a complaint about law enforcement: I’m a big fan of cops. But it is to say that, just as with any group, there are some bad apples. And there are some bad police departments. Which pose more of a threat to me? Bad cops? Or the FBI’s inability to tap into certain people’s phones. (Just like I’m more worried about car crashes than I am about STIs.)
“Both companies [Apple and Google] are run by good people, responding to what they perceive is a market demand. But the place they are leading us [one in which even they don’t have access to the information on phones they sell as a result of encryption] is one we shouldn’t go to without careful thought and debate as a country.”
Again, I would argue that the emphasis is exactly backwards: the place we should worry about going without careful thought and debate is the place he wants to take us, to a place where vendors of objects we all use conspire with the FBI and other law enforcement agencies to provide access to those objects – and to our most personal information – without our knowing. Maybe our country might decide, after a robust national debate, that law enforcement should have access to everything on my phone. But I know what’s on my phone, and I sure as shit don’t want anyone looking at it. Under any circumstances. And here’s where it gets tricky: I think that, if I knew the FBI and/or local law enforcement could gain access to every bit of information on my phone, it might well constrain by behaviors in ways that have nothing to do with the law. Particularly if those behaviors are socially – but not legally – reprehensible. Like, say, having sex with lots of people. Or trading sexts or images with people.
“[I]if the bad guys don’t back up their phones routinely, or if they opt out of uploading to the cloud, the data will only be found on the encrypted devices themselves. And it is people most worried about what’s on the phone who will be most likely to avoid the cloud and to make sure that law enforcement cannot access incriminating data. Encryption isn’t just a technical feature; it’s a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. It’s the equivalent of a closet that can’t be opened. A safe that can’t be cracked. And my question is, at what cost?”
Perhaps I’m naive. But ever since I reached the age of about, oh, 19 or 20, I became pretty skeptical about the notion of the existence of “bad guys” – and pretty suspicious of those who would have me divide the world into “good” and “bad” camps. Maybe if you’re the head of the FBI, it’s helpful to divide the world into “good guys” and “bad guys.” But I’m more interested in bad actions than bad people. And I hate the implication that if you do bad actions, then you’re a bad person – and thus, implicitly, deserving of less protection. And those last three sentences have me thinking: “a closet that can’t be opened,” “a safe that can’t be cracked.” Is it immediately clear to all that these are bad things? That there should be laws against them?
“Think about life without your smartphone, without Internet access, without texting or e-mail or the apps you use every day. I’m guessing most of you would feel rather lost and left behind. Kids call this FOMO, or ‘fear of missing out.’ With Going Dark, those of us in law enforcement and public safety have a major fear of missing out—missing out on predators who exploit the most vulnerable among us…missing out on violent criminals who target our communities…missing out on a terrorist cell using social media to recruit, plan, and execute an attack. Criminals and terrorists would like nothing more than for us to miss out. And the more we as a society rely on these devices, the more important they are to law enforcement and public safety officials.”
Here, he’s confessing to what I think is the truth: the FBI is like “kids.” It’s worried it’ll miss out. But just like “kids,” the FBI will miss out sometimes. That’s just how it goes.
“Justice may be denied, because of a locked phone or an encrypted hard drive.”
No…. “Justice may be denied” because the FBI isn’t able to prove a case. That’s always true. Except that, in this country, we agree that when the FBI isn’t able to prove a case, justice isn’t denied by acquittal – or non-prosecution: justice is served.
“I also believe that no one in this country should be above or beyond the law. There should be no law-free zone in this country. I like and believe very much that we need to follow the letter of the law to examine the contents of someone’s closet or someone’s cell phone. But the notion that the marketplace could create something that would prevent that closet from ever being opened, even with a properly obtained court order, makes no sense to me.”
This is interesting to me. I confess that I haven’t thought a lot about it. But my instinct is that it’s very different to say that it should be possible to own fully secure devices than to say that “no one should be above or beyond the law,” or, as he’s asserting here, that there should be no sphere of activity that’s not visible to law enforcement.
“Perhaps it’s time to suggest that the post-Snowden pendulum has swung too far in one direction—in a direction of fear and mistrust. It is time to have open and honest debates about liberty and security.”
Um, no. Sorry. I’m not with you there. I’m in favor of open and honest debates about liberty and security, but the “pendulum” hasn’t swung anywhere yet. Here’s hoping it does.
“When a city posts police officers at a dangerous playground, security has promoted liberty—the freedom to let a child play without fear.”
I like this idea. I think it would be terrific if it were true. But for far too many people, police don’t represent freedom and liberty, they represent the face of an authoritarian – and increasingly totalitarian – state. I don’t mean to say that our country is authoritarian or totalitarian. I believe the U.S. is an incredibly free place. But. There are people who live very close to me who wouldn’t dream of calling the police to protect them, who have learned, for better or for worse, that when the cops come, it’s not to protect them. As I said above, in general, I’m a big fan of the police. I like them, think they’re good people, well trained, doing hard jobs, in difficult circumstances. But that doesn’t mean I can’t also notice some of their large-scale failings.
“We understand the private sector’s need to remain competitive in the global marketplace. And it isn’t our intent to stifle innovation or undermine U.S. companies. But we have to find a way to help these companies understand what we need, why we need it, and how they can help, while still protecting privacy rights and providing network security and innovation. We need our private sector partners to take a step back, to pause, and to consider changing course.”
I think this construction – of businesses as “private sector partners” – is just a little terrifying. It admits, freely, just how totalitarian Comey’s world-view is.