An Open Letter to Congresspeople Regarding S. 4051 (Lindsey Graham’s Bill to Outlaw End-to-End Encryption)
I don’t even know where to begin writing this letter. I’m a very cynical person, especially when it comes to politics, and yet I’m no anarchist. I recognize the importance of having a representative government who dictates what is and isn’t allowed. I value individual freedom, and yet I realize that we need to draw lines in the sand and enforce them. And not to be too hard on you guys, but I think a lot of you don’t understand technology. You’re being lied to by people with an agenda who are making you think that the scary unknown is dangerous, a wild west of lawlessness, Silk Roads, and worse. But that’s not the case.
I am speaking, of course, about Senator Lindsey Graham’s latest assault on encryption. His so-titled “bill to improve the ability of law enforcement agencies to access encrypted data, and for other purposes” (what are those “other purposes” anyways?), which flat out says that he views end-to-end encryption as a tool for criminals to sell drugs and sexually abuse children. This is not true, and in this letter I hope to help you see why this is bill is at best a misguided effort to do the right thing and at worst a full on assault on the Constitutionally-guaranteed privacy of Americans.
Bad People Existed Before Encryption, Bad People Will Exist After Encryption
The primary crux of Sen. Graham’s argument against encryption is that it is used by very bad people, the kind of bad people we all universally agree are bad – specifically, drug dealers and pedophiles are often mentioned. And yet, child sexual abuse was recognized as a specific type of child abuse by Congress in 1973. Some of the earliest writings on the subject date back to 1857 in a paper by a French forensic pathologist. This is not a new issue, it’s one that predates the internet, the automobile, and almost the widespread use of electricity. As for drugs, I don’t think I need to provide evidence that drugs are an ancient problem. Drug abuse is nothing new, and dates back as long as drugs have been discovered.
I won’t disagree that bad people sometimes hide behind end-to-end encryption, but if you ban it they’ll just find another method. You’re treating the symptom, not the root cause. And that matters because you’re also penalizing law-abiding citizens in the process.
We Don’t Ban Freedom Because Some People Abuse It
Lots of law abiding citizens use end-to-end encryption for lots of perfectly legal purposes. I use it to transfer sensitive login or financial data with my partner (as well as more benign content like memes and what our dinner plans are). The Clinton Campaign made extensive use of Signal to keep their conversations confidential. Trump and his lawyer used Signal to discuss their legal matters in private (as they are legally entitled to by attorney-client privilege). The EU Commission has ordered all its staff to switch to Signal. And that’s just one specific app. Lots of high-level people use end-to-end encryption to protect sensitive conversations. WhatsApp is one of the most popular apps in the world for people to communicate with family members in other (sometimes hostile) countries so they don’t have to pay for expensive international plans. Does that make it illegal? If you have a sensitive conversation with your spouse about finances, would you want to record that and air it on national news? Does that make it illegal if you answered “no?”
My favorite comparison is clothes. Here’s a YouTube video about how many guns you can hide in your clothes. Here’s another story about a teen hiding drugs in his underwear. And yet, where are the cries to ban clothes? Why aren’t we making them illegal? What do you have to hide? You’re not doing anything wrong, right? So why use the same items that criminals do? The argument sounds stupid because it is stupid, no matter whether you use it on clothes or messenger apps.
Criminals, By Definition, Don’t Obey Laws
One of the top arguments in the gun control debate is that criminals, by definition, don’t listen to laws. If you ban guns, all you’re doing is taking guns out of the hands of law-abiding citizens who would otherwise use those guns to defend themselves. The same is true for end-to-end encryption. If you ban end-to-end encryption, criminals will still use it. The Great Firewall hasn’t stopped tech-savvy Chinese citizens from finding ways around it. Activists in Hong Kong were using Animal Crossing to bypass censorship earlier this year. Additionally, those same protestors are using decentralized apps – meaning apps that don’t have a central service provider the way that Facebook or Twitter does – to communicate and organize, which makes censorship exponentially harder. You can ban encryption in America, but all that’s going to do is make criminals use different services that are harder to shut down and based overseas. You won’t stop them, you’ll just punish law-abiding citizens by stripping them of their ability to be safe and protect themselves. If you vote against gun control, you’d be a hypocrite to vote for this law instead. And if you vote for gun control, then remember that encryption is a violence-free way of providing individual protections and civil liberties.
There are bad people in the world, and there always will be. That doesn’t mean we shouldn’t try to stop them and protect the innocent, but what kind of dystopian authoritarian says that it’s okay to strip everyone of their freedoms in exchange for stopping a few bad guys? The United Nations recognized privacy as a human right in 1948 (Article 12). This isn’t just about Democrats and Republicans or some other arbitrary “chalk one up for my team” fight, this is about human rights (and whether you want to admit it or not, America does not have the best human rights record (Alternate Source)). In another blog post, I mentioned that violent criminals make up less than 1% of the US population. Not pedophiles and drug dealers specifically, ALL violent criminals, including murderers, domestic assaulters, violent rapists, violent burglars, and more. Less than one percent. Would you do anything if your odds of success were less than 1%? In almost all situations, no. So don’t punish 99% of law abiding citizens by stripping them of their freedoms because of a few bad apples.