Technologists warn that there is no way to build in a “backdoor” just for law enforcement, much as there’s no way to outfit a safe with a backdoor that only the FBI can open. If encryption is weakened so that government can, in theory, access anyone’s data with a warrant, then in practice, everyone’s communications will be vulnerable to Chinese hackers, the Russian government, and NSA employees operating beyond constitutional bounds without individualized warrants.
Over at Lawfare, Benjamin Wittes, who tends to favor increasing rather than circumscribing governmental powers that relate to national security, muses at length on this question. “Would it be a good idea to have a world-wide communications infrastructure that is, as Bruce Schneier has aptly put it, secure from all attackers?” he asks. “That is, if we could snap our fingers and make all device-to-device communications perfectly secure against interception from the Chinese, from hackers, from the FSB but also from the FBI even wielding lawful process, would that be desirable? Or, in the alternative, do we want to create an internet as secure as possible from everyone except government investigators exercising their legal authorities with the understanding that other countries may do the same?”
He finds it useful to consider that question before deciding whether it is even possible to secure the Internet against everyone except lawful government investigators.
For now, let’s play along.
He says that the answer is not a close call.
“The belief in principle in creating a giant world-wide network on which surveillance is technically impossible is really an argument for the creation of the world's largest ungoverned space,” he writes. “I understand why techno-anarchists find this idea so appealing. I can't imagine for moment, however, why anyone else would.”
He goes on to attempt an analogy:
Consider the comparable argument in physical space: the creation of a city in which authorities are entirely dependent on citizen reporting of bad conduct but have no direct visibility onto what happens on the streets and no ability to conduct search warrants (even with court orders) or to patrol parks or street corners. Would you want to live in that city? The idea that ungoverned spaces really suck is not controversial when you're talking about Yemen or Somalia. I see nothing more attractive about the creation of a worldwide architecture in which it is technically impossible to intercept and read ISIS communications with followers or to follow child predators into chatrooms where they go after kids.
Even at this conceptual level, before even considering whether a government-only backdoor is possible and cost-effective, it seems to me that Wittes’s analysis is flawed.
The problem lies in the limits of his analogy.
In an ungoverned territory like Somalia, bad actors can take violent physical actions with impunity––say, seizing a cargo ship, killing the captain, and taking hostages. If authorities were similarly helpless on America’s streets––if gangs could rob or murder pedestrians as they pleased, and police couldn’t see or do a thing––that would, indeed, be dystopian. But when communications are encrypted, the “ungoverned territory” does not encompass actions, violent or otherwise, just thoughts and their expression.