Thursday, April 14, 2016

A reasonable expectation of privacy.




I'm in my office before class, having started my morning with a New York University-hosted forum on the Zika virus, which actually will be up for discussion in class this afternoon. About an hour after that forum concluded, Microsoft announced that it was suing the U.S. Department of Justice, "challenging as unconstitutional the government’s authority to bar tech companies from telling customers when their data has been examined by federal agents." (Wall Street Journal)  

Now, class prep completed, I'm listening to an address that FBI director James Comey gave at Kenyon College's "Expectation of Privacy" conference.  He is of course arguing that there needs to be a way Hinto encrypted systems, with many examples being tossed out, usually about terrorists or kidnappers or murderers.  He rejects absolutely the "slippery slope" argument. He asks for a substantive thoughtful conversations of security and liberty.  He ignores the issue of the back door becoming accessible to the criminals, nation states or terrorists.

The late Antonin Scalia argued some time ago that "There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."
Let's hope that the Congress can remember this, divided as it is, as one or more anti-encryption bills go forward.

I admire Director Comey enormously, including his references to FBI agent training he has instituted via a visit to the Holocaust Museum, and the order from Bobby Kennedy to wiretap Dr. Martin Luther King Jr.'s phones.  I think, though, here you will find the other side of the article missing -- the side that makes the "slippery slope" argument, that believes that source code is protected speech, and that resists creating a tool that the government asks for, one that breaks its own product.

He is right, we have never been closer to a condition of complete privacy with the advent of encryption. May I also point out that the question and answer session that follows his talk is well worth listening to.  He is a good teacher.


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