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Should You Have to Speak with Others in a Way the Government Can Understand?

Have you purchased an iPhone 6? If so, you are now on the front lines of a major dispute between Apple and the federal government over the privacy of your personal data. Apple wants you to be able to protect your data from all possible snoopers, whereas the federal government wants them to install a “backdoor” for law enforcement purposes. The dispute boils down to one fundamental question: “Must you communicate with others in a way the government can understand?”

Under earlier versions of the Apple iPhone iOS operating system, if the government wanted to access the contents of someone’s phone but couldn’t break the passcode, they could get a search warrant. The police would then send the phone to Apple, who would then unlock that information pursuant to the warrant.

But under the new iOS8, Apple says this is no longer possible. Their website states, “Apple cannot bypass your passcode and therefore cannot access this data. So it’s not technically feasible for us to respond to government warrants for the extraction of this data.” Shortly afterwards, Google announced similar encryption for phones running the latest version of Android.

This provoked a fierce backlash from law enforcement agencies. FBI director James Comey said this would help terrorists and child predators. James Cole, the No. 2 official at the Justice Department, told Apple officials that they were “marketing to criminals” and that “a child will die” because of Apple’s policies.” Chicago police detective John Escalante said, “Apple will become the phone of choice for the pedophile.”

The federal government has demanded that Apple and Google allow some form of backdoor access to the contents of an encrypted phone to law enforcement officials with a search warrant. FBI director Comey warned that if Apple and Google did not do so voluntarily, “Congress might have to force this on companies.

Defenders of Apple and Google have countered that (1) requiring a “backdoor” for the government also allows a backdoor for criminals, hackers, or malicious foreign governments, (2) such backdoors would hurt U.S. companies in a competitive global market, and (3) law enforcement can often obtain the data they desire through other means, such as cloud backups of suspects’ data. (See typical statements from the Center for Democracy & Technology and the Electronic Frontier Foundation.)

These are all good arguments in favor of Apple and Google. However, I’d like to add another one: You are not obliged to communicate with others in a way that the government can understand.

Suppose you and your cousin both spoke an obscure dialect of a rare language such as Basque, which we will call “Crasque.” You and he understand one another perfectly, but virtually no one else can (including the federal government).

Is communicating in such a fashion a crime? Does it violate anyone’s rights? Of course not. Speaking in an obscure tongue is perfectly legal -- just as whispering a private joke to a friend in a way that no one else can overhear is perfectly legal.

Now suppose the government had a valid search warrant to wiretap your phone. You and your cousin are speaking Crasque, and the feds can’t understand a word you two are saying. Is that in and of itself illegal? Can the feds rightly demand that you translate your Crasque into English for them? Of course not.

Next, suppose you and your cousin invented your own obscure language that no one else could understand? Well, that’s basically what cryptography is.

It is true that no one has the right to speak in Crasque (or to use cryptography) to help commit crimes such as murder or theft. But that’s because the underlying acts of murder and theft are wrong. The use of Crasque (or cryptography) would be wrong only insofar as it was part of planning or executing a criminal act. But speaking Crasque (or using cryptography) is not criminal in and of itself.

Cryptography is just a tool that can be used for good or evil ends -- like a knife or a gun. Guns can be used for both legitimate sporting and self-defense purposes, as well as to help commit crimes. Most advocates of individual liberty recognize that we shouldn’t restrict the rights of the vast majority of honest gun owners just because a small minority misuse guns for criminal purposes.

The same applies to encryption. Government officials like Director Comey basically want to forbid Apple and Google from selling a product that lets users communicate in a way the government can’t understand.

I recognize that allowing the FBI backdoor access to encrypted communications might help solve some crimes. But so would any number of privacy-violating laws. For instance, consider a hypothetical law outlawing cash and instead requiring that all commercial transactions be conducted electronically, with records stored in a master database searchable with a government warrant. Such a law might help solve some crimes. But most Americans would also regard this as an outrageous violation of their individual rights.

If the FBI wants to argue that “a child might die” because of secure encryption, then we should also ask how many innocent children (and adults) might be injured or killed by insecure cryptography that can be breached by criminals, hackers, and repressive governments.

As computer security expert Bruce Schneier puts it, “You can’t build a backdoor that only the good guys can walk through. Encryption protects against cybercriminals, industrial competitors, the Chinese secret police and the FBI. You’re either vulnerable to eavesdropping by any of them, or you’re secure from eavesdropping from all of them. Backdoor access built for the good guys is routinely used by the bad guys.”

Schneier and others have also questioned the examples cited by the FBI to supposedly bolster their case. Former FBI assistant director Ronald Hosko recently attempted to argue in a Washington Post column that a dramatic rescue of a kidnapping victim in North Carolina would not have been possible without such data. But when his argument was debunked, the Washington Post editors issued a strongly worded correction:

Editors note: This story incorrectly stated that Apple and Google’s new encryption rules would have hindered law enforcement’s ability to rescue the kidnap victim in Wake Forest, N.C. This is not the case. The piece has been corrected.

Investigative journalists at The Intercept similarly debunked three examples cited by FBI Director Comey where encryption supposedly would have foiled a criminal investigation. Instead, they found that “cell-phone evidence had nothing to do with the identification or capture of the culprits, and encryption would not remotely have been a factor.”

Apple and Google are not “marketing to criminals” but marketing to people like myself who value their privacy. I value how encryption allows me to safely engage in online shopping and banking, hold private conversations with friends and family, and protect my data if my phone were stolen or lost. I applaud Apple and Google for standing up to improper government demands, and I hope they stick to their guns.

I’m not anti-law enforcement. I’m just an ordinary law-abiding citizen who values his privacy and who believes in properly limited government. If I want to talk to a friend and the government can’t understand what we’re saying, that’s their problem -- not mine. I’m angry that they would want the power to force me to speak in a way they can understand whenever they want. You should be too.