The Senate's Problematic Anti-Encryption Bill

A generation ago—after America’s spy agencies were exposed as perpetrators of massive civil-rights violations, abuses of power, and misdeeds abroad—oversight committees were created to protect liberal democracy from the national security state. Senators Dianne Feinstein and Richard Burr now sit on one of those committees. And they are not just shirking their core duty, they are aggressively undermining it.

Rather than working to protect Americans from the prying eyes of government in this golden age for surveillance, when their every movement is tracked by the smart phones in their pockets, license plate readers on their roads, and supercomputers at NSA headquarters, they are pushing a new bill that would do more than any law in the country’s history to undermine privacy for virtually every American.

In effect, it would outlaw end-to-end cryptography. “The bill would make illegal the sort of user-controlled encryption that’s in every modern iPhone, in all billion devices that run Whatsapp’s messaging service, and dozens of other products,” Wired explains. There would be no easy way to email or text securely with your boyfriend or girlfriend, your best friend, your spouse, your boss, your doctor, or your psychiatrist.

And you’d never quite know who was spying on you, because the backdoor that the legislation effectively mandates could be exploited by any hacker savvy enough to open it.

The legislation is so poorly written that it would render many common products used without any ill-effect illegal, Isaac Potoczny-Jones explains. “It’s likely that these Senate members simply don’t realize that the technologies to make data unintelligible to anyone, including the government, are 1) The cornerstone of cybersecurity as we know it, and 2) already widely available, and have been for many years,” he writes.

A technology expert at The New America Foundation, the centrist Washington, D.C., policy think-tank, told Wired, “In my nearly 20 years of work in tech policy, this is easily the most ludicrous, dangerous, technically illiterate proposal I’ve ever seen.”

Senator Ron Wyden, another member of the Senate intelligence committee, promised that if the legislation reaches the Senate floor he will filibuster it. “This would effectively outlaw Americans from protecting themselves,” he said in a statement. “It would ban the strongest types of encryption and undermine the foundation of cybersecurity for millions of Americans. This flawed bill would leave Americans more vulnerable to stalkers, identity thieves, foreign hackers, and criminals.” Meanwhile, he added, “it will not make us safer from terrorists or other threats.”

That’s because a terrorist intent on using, say, a messaging app with end-to-end encryption need not rely on what’s built in the United States by above-board tech-firms. If end-to-end encryption is outlawed, the law-abiding will lose access. Outlaws won’t.

Sometimes, I give thanks for the limits on how longstanding technology can be limited. Consider the humble piece of paper. Terrorists can map out an entire operation on the stuff, then burn up all the evidence, leaving no more than a smoldering ash heap for the FBI, even if they have a warrant! Imagine if it was technologically viable to produce paper than could neither be burned nor shredded, and the federal government imposed that mandate on the nation’s paper-makers. Suddenly, it would be marginally harder for terrorists to plan operations and harder for various other criminals to destroy evidence of their misdeeds, too.

The literal paper-trail would be preserved!

Meanwhile, every American with a diary or a stack of old bills they’d once have taken to the shredder to thwart identity thieves would be unable to protect themselves. And determined terrorists could still get burnable paper made abroad.

The analogy is imperfect in part because it radically understates the privacy threat posed by the Burr-Feinstein bill. In this hyper-connected era, your unencrypted data can be sucked up in mass quantities and stored permanently by any criminal syndicate or foreign government with a sufficiently sophisticated spy arm.

Consider how these bad actors might see high-profile targets who aren’t themselves protected government officials, like Chelsea Clinton and Donald Trump Jr.

Would you prefer they carry smart phones with end-to-end encryption that protects their every text message and geolocation-enabled photo from the hands of Russia’s intelligence agency and black-hat hackers? Or would you prefer a world where all technology has a backdoor, where the vulnerability created for law enforcement is exploited by bad actors, and where the next president of the United States receives a blackmail message urging him or her to take a given action or else see some aspect of his or her child’s private life splashed on the Internet?

There are hundreds of members of Congress. Most have spouses and children. How much power awaits hackers who can read their private communications?

America has lots of tech-clueless CEOs, too.

Are we better off as a nation if the consumer smart phones they use are maximally secure or sufficiently weakened that Chinese government hackers can pilfer their secrets?

And that’s without even considering the potential abuse by the U.S. government that this legislation would enable. Apparently Donald Trump’s rise hasn’t spooked the senators.

What’s especially odd about this Orwellian proposal by Feinstein and Burr is its arrival at a moment when even many fervent supporters of expanding government powers to protect national security are beginning the wisdom of that approach. “There is no consensus in the intelligence community that a requirement to force manufacturers to open encryption is the correct policy,” Gary Shapiro, president of the Consumer Technology Association, points out. “Intelligence community leaders such as former NSA and CIA director Michael Hayden, former Homeland Security director Michael Chertoff and former NSA director Mike McConnell have spoken out against similar proposals.”

Meanwhile, as the Electronic Frontier Foundation notes, “Millions of Americans suffer the loss, theft, or compromise of intimate communications, trade secrets, and identities each year. We desperately need more security, not less.” Unfortunately, the intelligence committees are largely composed of legislators who don’t understand cybersecurity, have little regard for the privacy of Americans, and are more interested in empowering the deep state than protecting citizens. They are a disgrace to the founding spirit of the oversight committees they’ve coopted.

About the Author

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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