Encryption: The Precedent Is the Voting Rights Act

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Can, should law enforcement be able to look anywhere, search anything to solve or prevent a serious crime?

Almost any judge in America would rule yes. U.S. District Court Magistrate Sheri Pym did. Or at least she thought she did. What she really ruled was a bit different, more complicated, and at least for the moment more legally contentious.

However ultimately the future of data encryption, and with it digital privacy in the U.S., will come down to two simple questions: "What reasonable tools and powers should law enforcement be allowed in the pursuit of public safety." And of equal importance, "What reasonable privacy protections are users of electronic devices entitled to?"

Right now the centerpiece of the government's case against Apple is the "All Writs Act," (AWA) a component of the Judiciary Act of 1789. A good breakdown of the AWA and how it might apply to the government's case against Apple is available in the form of an audio lecture by Stanford University's Jonathan Mayer. As Mayer points out, the law is remarkably broad and, having been written in the 18th century, unproven in this application.

Apple's defenses seem to be coalescing around the First Amendment, and their counter argument is that being asked to author a digital operating system tailored to federal law enforcement's current objectives creates an unreasonable burden. But the AWA was never intended to address or even envision complex 21st century digital-era law. So there's a square peg, round hole problem on many levels.

FBI v Apple is not just an isolated case or an attempt by the government to target one device, or even the world's leading technology company, it's actually quite a bit bigger than that. Enter Edward Snowden and his cache of documents.

What the Snowden documents reveal, actually confirm, is a much larger effort by the U.S. government's law enforcement and security players to convert personal computing into the most invasive form of private citizen monitoring the world has ever known. More to the point, according to the documents, they have already succeeded. Encryption really functions as an antibody, a challenge to the U.S. government's vast "Total Information Awareness" process.

It is the pattern of abuse that draws on the Voting Rights Act for precedent. What Congress said in the VRA, among other things, was that there was a pattern of abuse of voting rights specifically targeting minorities in specific states and jurisdictions. Further, congressional lawmakers asserted that a legal remedy was required to offset the pattern of abuse in the affected jurisdictions. The key takeaway there is a documented, systemic pattern as establishing cause for legal remedy.

What the Snowden documents did was illustrate a massive pattern of civil rights abuse by the NSA and federal law enforcement on a scope affecting the vast majority of Americans. Not only did the Snowden documents establish, in many cases for the first time, that these abuses were taking place, but they confirmed accusations and reports by civil liberties experts that the abuses had been taking place for years.

The civil rights that were denied Americans affected by the government's excesses were specifically those guaranteed under the Fourth Amendment. By using a catch-all rationale and broad self-granted authorities, the NSA and participating federal law enforcement agencies trampled upon the Fourth Amendment protections, according to the documents placed in the public record by Snowden, of practically every American who uses an electronic computing or communication device or financial instrument. The scope is staggering.

Applying the VRA standard, the actions of the NSA and associated federal law enforcement agencies, as illustrated by the Snowden documents, are pernicious, persistent violations of the civil rights of every American affected.

Against that backdrop, consumer personal encryption is not only a reasonable remedy but, until the government can demonstrate conclusively that the violations have ceased, a necessity and a right.

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