A clash two decades in the making appears to finally be coming to a head. In response to public backlash over the National Security Agency’s (NSA) espionage tactics, tech companies are taking steps to rebuild trust with their customers by encrypting their networks end-to-end. On October 16, FBI Director James Comey publicly expressed dismay that this push will severely limit the ability of law enforcement agencies to do their job. This contentious issue pits the federal government directly against Silicon Valley. Something has to give.

Encryption refers to the process of distorting information from its normal format prior to transmission in such a manner that only an end-recipient with the key can decipher its contents. The debate initially surfaced in the early ‘90s, when the word encryption first entered the public lexicon, however it has never had as much momentum as it does today. Surely, the government is not against the idea of encryption, for all of their communications are heavily encrypted. Their concern is that unregulated access to, and use of, encryption in the private sector might have negative consequences. Former FBI Director Louis Freeh succinctly summarized this point of view: “If we have all the legal authorities and the technical accessibility to that information but we can’t understand it in real-time, it doesn’t do us and the people that we have to protect and the country very much good.” Conversely, tech companies dismiss the governments concerns as exaggerated arguments they’ve been recycling since the early ‘90s. When pressed to identify a specific situation where encryption may endanger citizens, Director Comey replied: “Rescuing someone before they’re harmed? Someone in the trunk of a car or something? I don’t think I know yet. […] Logic tells me there are going to be cases just like that.”

The real issue, according to the tech industry, is the potential loss of American jobs resulting from a loss of trust between foreign governments and US companies due to NSA intelligence programs exposed by Edward Snowden. One estimate pegs the damage done by the NSA to the tech industry at $180 billion over just two years. Executives from some of Silicon Valley’s biggest companies fear an even bigger side-effect, namely, breaking the Internet. Facebook General Counsel, Colin Stretch, recently warned “The Internet is a medium without borders, and the notion that you would have to place data and data centers and the data itself [in a particular location] […] is fundamentally at odds with the way the Internet is architectured.” Google CEO, Eric Schmidt, agrees: “The simplest outcome: We’re going to end up breaking the Internet.” Some countries, such as Russia, have already taken steps to require companies doing business in the country to maintain data centers within their geographic borders. This is a prohibitive cost for start-ups and, in essence, a barrier to international trade.

As it stands, the law does not prevent companies from encrypting their data. If Director Comey has his way that will soon change. Keep an eye out for developments in the coming weeks, as this issue is only gaining momentum.


R. Kevin Saunders

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2 Responses to An Issue of National Security

  1. Allison Laubach says:

    Back in the 1990s, when encryption became a subject of concern for the government, the Clinton Administration proposed the use of a device called the “Clipper Chip.” The chip would encrypt information sent between users with the most advanced technology the government had to offer. However, it would also provide the government with the decryption key to access any of the communications sent between the devices. The hope was that people would voluntarily sacrifice the privacy of their communications in exchange for the assurance that it would be extremely well protected against outside hackers.

    The Clipper Chip concept failed for a myriad of reasons. The technology was expensive, the government could not compel individuals to use it, and it was highly unlikely that criminals would utilize government-monitored technology in furtherance of their crimes. In the wake of the recent NSA leaks, concepts like the Clipper Chip would likely receive even more pushback from the American public. It will be interesting to see how the government tries to monitor encryption today, and to see how arguments in favor of policing encryption have changed since the 1990s. Attempts by the government to gain access to the American public’s encrypted, private, messages will likely spark Fourth Amendment debates.

  2. Sara Hunter says:

    It will be interesting to see how this impacts the government’s ability to monitor terrorist activity online. At a time when there are almost 10,000 active terrorist websites on top of the ever-growing threat of ISIS, which has utilized the internet more than any other terrorist organization, I cannot imagine that this is good for the NSA. If tech companies make it harder for the government to gain access to information, which is already hard enough to get as it is, there could be detrimental effects.

    I am curious to see if the government will try to find a way to work more cooperatively with tech companies, in a way that doesn’t threaten customers.