Do Encrypted Phones Threaten National Security?

wk1003mike/Shutterstock.com

A legislator compares manufacturing devices with strong, end-to-end encryption to dumping toxic waste in a stream.

In Washington, D.C., where a growing chorus is demonizing end-to-end encryption that permits people to have conversations that the government can never see, Senator Sheldon Whitehouse has aired a particularly extreme anti-privacy position: The Rhode Island Democrat suggested last week that selling well-encrypted smartphones to Americans should be treated like dumping toxic waste in streams. Ben Wittes of The Brookings Institution transcribed the remarks.

They began with a hypothetical kidnapping. “A girl goes missing,” Senator Whitehouse told Deputy Attorney General Sally Yates. “A neighbor reports that they saw her being taken into a van out in front of the house. The police are called. They come to the home. The parents are frantic. The girl's phone is still at home.”

Naturally, everyone wants to search the phone for clues. But it is encrypted. Of course, the phone doesn’t necessarily hold any clues, and the victim is no worse off than every child kidnapped in the thousands of years before smartphones existed. Nevertheless, Senator Whitehouse feels that the phone maker bears some culpability for the girl’s fate, and should perhaps be made to pay up in a civil lawsuit:

It strikes me that one of the balances that we have in these circumstances where a company may wish to privatize value by saying, "Gosh, we're secure now. We got a really good product. You're going to love it." That's to their benefit. But for the family of the girl that disappeared in the van, that's a pretty big cost. And when we see corporations privatizing value and socializing cost so that other people have to bear the cost, one of the ways that we get back to that and try to put some balance into it, is through the civil courts, through a liability system.

If you're a polluter and you're dumping poisonous waste into the water rather than treating it properly, somebody downstream can bring an action and can get damages for the harm that they sustain, can get an order telling you to knock it off. I'd be interested in whether or not the Department of Justice has done any analysis as to what role the civil-liability system might be playing now to support these companies in drawing the correct balance, or if they've immunized themselves from the cost entirely and are enjoying the benefits. I think in terms of our determination as to what, if anything, we should do, knowing where the Department of Justice believes the civil liability system leaves us might be a helpful piece of information. So I don't know if you've undertaken that, but if you have, I'd appreciate it if you'd share that with us, and if you'd consider doing it, I think that might be helpful to us.

Senator Whitehouse is taking a very strange position. In the hypothetical, even looking past the objections noted above, the girl (or the guardian who bought her the phone) deliberately purchased a secure device and could have chosen a less secure model had they decided that the potential risks of strong encryption outweigh the benefits. When individuals bear the predictable cost of a consumer choice that they made without coercion it is inaccurate to say that the seller socialized the cost.

Of course, there may be hypotheticals better-suited to advancing Whitehouse’s agenda.

Say that some radicalized proponents of Herman Cain’s “9-9-9” tax plan plot to blow up 27 water towers in a misguided bid for their hero’s affection. After they’ve planted explosives, but before any detonations, they’re apprehended thanks to a tip from one of their co-workers at Godfather’s Pizza, who looked over their shoulders as they were texting back and forth about the plot. If authorities could access those messages they could save the water towers. But everything is encrypted, and hours later, all the water towers go boom.

The mustachioed terrorists succeed!

But even granting that there are scenarios in which strong encryption could result in costs that the public wouldn’t have had to bear in an alternative world with less privacy, a civil-liability framework would have to account for the opposite sort of case, in which costs were imposed on consumers or society by insufficiently strong encryption.

Say a foreign government, a terrorist organization, or black-hat hackers compromise the smartphone exchanges of David Petraeus or Hillary Clinton or the head of security at a nuclear power plant or a systems administrator at the New York Stock Exchange. What costs will the public bear that wouldn’t exist in an alternative world with end-to-end encryption? And what of the costs born by average citizens when their privacy is compromised? I strongly suspect the costs of insecurity are much higher than the costs that would be born in a world of end-to-end encryption, though of course there’s no way to prove that judgment definitively.

Either way, shaping encryption policy by way of dueling lawsuits and jury awards strikes me as one of the least efficient, least accurate methods imaginable to quantify the costs and benefits of different approaches to encryption and data security. And in a nation in which telecommunications companies were able to wrangle retroactive immunity for knowingly and illegally helping the government to spy on Americans, the notion that civil liability would be consistently applied to powerful corporations, even in the aftermath of black-swan events, is strikingly naive.

(Image via wk1003mike/ Shutterstock.com)

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.