ENCRYPTION AND THE FIRST AMENDMENT
The First Amendment to the United States Constitution, and the versions adopted in each state constitution, prohibit the government from interfering or impeding on the right of the people to express themselves (communication between people) and associate with others in any way they choose, to petition the government to redress grievances and assembly (peaceful protesting). It also requires a secular state, divested of any religious mandates or involvement, including freedom of the press (modern day news media). We don’t need words on paper to define rights we had long before governments were formed.
The First Amendment does not give anyone any rights, it merely denies the government the privilege or power of restricting the exercise of such rights by people. In fact, it imposes a duty upon the government to protect such rights. Remember that these rights, freedom of expression and the right of association, etc., existed long before any words were written on a piece of paper. They are not created or regulated by any words on a piece of paper, but the First Amendment requires government to protect these ancient rights of people.
As it happens, people sometimes choose to communicate and associate with each other in secret, or in private. Again, no law can impede or regulate this; even if it is for illegal or unlawful purposes. If such activity is for unlawful or illegal purposes, this specific conduct may be an element of a crime and the wrong-doer may suffer the consequences, but this type of communication and association are not prohibited by themselves. Likewise, free speech and association many times involves secrecy.
Encryption is the means to communicate and associate privately, or in secret. People have secrets and need privacy. Human decency requires privacy and even secrecy. We wear clothing and have doors with locks, windows with blinds and drapes and tinting. We have passwords and routinely keep secrets from each other, not because we want to commit crimes, but because it’s part of our nature. Privacy helps us be who we are, just like we don’t share all of our thoughts with everyone. Most of our thoughts are never expressed, they are kept private.
Encryption has been used by every individual or group, including every military, since man existed; and in recent years, it has become readily available to the average person. Using encryption is not a question of how it may impede a criminal investigation. Free speech is not contingent upon how it may adversely affect the official functions of government. Police work is not supposed to be convenient, it’s hard work and people pay for this and those who volunteer to work in this area of government have a duty to recognize restrictions on the performance of their duties, while also fulfilling their duties in the public interest. It is not incumbent upon people to waive their privacy (free speech and association) interests for the sake of making police work more convenient.
The problem we have today is that while our access to encryption and privacy has increased, data collected from our communications and associations has increased dramatically. Surveillance of people for no other purpose but surveillance and surveillance with a profit motive have become very prominent. By default, we have more encryption than ever before in history, but less privacy than every before, simply because the same technology is being used by the government and private companies for profit and other nefarious purposes, and nearly all against the public interest, I would argue.
Please ban encryption with laws. The more legal bans placed on encryption, the more people will want it and the more people will use it, and it will destroy those companies who fail to provide it. It will also squarely lead to constitutional challenges, likely resulting in these laws being overturned and creating more privacy friendly case law. It begs the question, if we don’t have the right to use encryption, how are users of our data going to escape liability from failing to protect our data which they are using? While it’s an interesting question, we must still remember that free speech is not a privilege that can be regulated, it’s an absolute right (of course there are adverse consequences for some speech, but that doesn’t change one’s right to speak or express himself freely).
If I may, and you can decide for yourself of course, I’m going to include encryption under the category of free speech and freedom of association. We may not have case law on this yet, but freedom and rights do not come from case law. Case law merely helps our government understand the law and its duties. Ultimately, encryption is an element of free speech and the freedom of association. It’s protected free speech. It’s also a form of privacy and we have constitutional restrictions against violating one’s right to privacy, namely in the Fourth Amendment; however, since we receive no rights from any law, the right to privacy is what people make of it. One way we get privacy is by using encryption. We don’t need the actual word “privacy” to appear in any laws in order to recognize that people have the absolute rights to freedom of express, association and that includes the means to achieve these rights, including encryption, secrecy and privacy.