People, in general, prefer easier over more difficult, even if the former doesn’t align with their job or their values. People that work for the government are no different than you and I in this regard. The latest example is found in a letter from Attorney General William Barr, asking Facebook to delay (or weaken) plans to implement encryption in its messaging services. And, as is almost de rigeur in such affairs, Barr made a “for the children!” plea:

Companies cannot operate with impunity where lives and the safety of our children is at stake.

When someone invokes “for the children!,” I reflexively grab onto my wallet and my rights. As should you.

I understand the government’s desire here. Even excusing the “make it easy for us” angle, in times of yore, a search warrant could be secured to listen in on telephone conversations and the like. Modern encryption stands in the way of that. But, difficulty is nowhere written into the Constitution as a qualifier in the government’s primary job: respecting and protecting individual rights. Eroding those rights in order to protect them is twisted thinking, born in part of the sort of laziness I opened this article with.

Moreso, I’ve little sympathy for the laments about the difficulties created by encryption, given the power of the tools that technology has concurrently given the State. Facial recognition software, biometrics, DNA testing, gait recognition, license plate readers, surveillance cameras on almost every street corner, GPS tracking via our cars and our devices, and the power of Big Data to predict our behaviors based on the vacuuming up of countless data points offered by our wired existence have made the government’s power to investigate us far, far easier, and offered many more ways of catching bad guys.

It does so routinely, both nationally (mass surveillance) and locally (just recently, in NY, an alleged mobster’s paranoia about his girlfriend (he put a GPS tracker on her car) enabled the arrest of almost two dozen people of or associated with organized crime).

Furthermore, it abuses all this technological power. Mass surveillance of our telephone calls, mass snooping of our emails and Internet travels, compounded with lies and deception, both to the public and to Congress, should warn us off the “give us more power so we can give you safety” canard. Stories of government officials misusing their enormous power are legion.

Technology companies don’t answer to the government – they answer to the consumers without whom they would not exist. If consumers value privacy and encryption, and the techs want to provide it, that’s the end of the conversation. I don’t see anything in the Constitution that empowers government to deny those parties that transaction. That “it makes our jobs harder” doesn’t count. Not being able to randomly search people’s homes, or randomly stop them on the street for a pat-down, makes law enforcement’s job harder, but they can’t duck the Fourth Amendment on such grounds.

One dodge offered up by surveillance apologists and safety whores is the “third party doctrine,” which holds that the right to privacy is waived when someone uses a third party to facilitate a communication, thus removing the “get a warrant” obstacle. Under this principle, a phone company can give the police a list of calls I made without a warrant, but the police cannot listen to my conversations unless they get a warrant.

By extension, one might surmise, the choice to transmit a message over Facebook’s network might waive privacy, since the data is forwarded to a third party. I offer two caveats: One – the messenger need not know the content of a message to carry out its service. Two – the encryption of a message does not hinder the third party’s ability to transmit it. If I was exchanging messages that I personally encrypted over the network, the government could not force me to un-encrypt them (see: 5th Amendment). If I use a tool someone else created, the same holds true. Apple fought off the surveillance state by setting up encryption that the company could not read, and the techs are resisting the demand that they build “back doors” that would enable the government to read encrypted communications (the problems and risks of such should be obvious, given how frequently we hear of massive data breaches).

All this reminds me of an observation by libertarian satirist P.J. O’Rourke:

Giving money and power to government is like giving whiskey and car keys to teenage boys.

The government is already vastly more powerful and intrusive than it was when the Constitution, a document written by people suspicious of government and meant to limit and constrain government – was drafted. People who work in government are, first and foremost, obligated to respect those limits, in both word and spirit, as they do their jobs. They should not be demanding that our rights be curtailed or bypassed just because it would make their jobs easier. Especially when they already have so many tools that do at their disposal, and especially when they have a long record of abusing the tools they already have.

• About the Author

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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