Post-Snowden, do you want to know how your public servants think about you and your privacy? Here is an excerpt from an article in today’s Wall Street Journal:
FBI Director James Comey on Thursday said he is concerned about moves by Apple Inc. and Google Inc. to market phones that can’t be searched by law enforcement, saying agency officials have engaged in discussions with both companies.
“What concerns me about this is companies marketing something expressly to allow people to place themselves beyond the law,” Mr. Comey said in a briefing with reporters.
The Federal Bureau of Investigation director [added] that “it may be time” for a national conversation about whether “we [are] doing things that no longer make sense, that are no longer consistent with our commitment that we are a country of law where no one is beyond the law.”
The last sentence exemplifies a mode of thought where law enforcement agencies want to arrange the world entirely for their convenience, safety, efficiency, and freedom of action. If you do something that makes it more difficult for law enforcement agencies to monitor and control you, you place yourself beyond the law. But ask yourself, how does placing information beyond an agency’s reach put you “beyond the law”?
Second, note that law enforcement agencies have claimed a right to search people’s phones without a warrant. They say that obtaining a warrant gives people time to destroy the data on their phones. In every instance where police see a tradeoff between their own freedom and the Bill of Rights, which explicitly limits government’s ability to act without a warrant, police opt for their own freedom of action.
Comey’s operating assumption is that people who try to protect personal information put themselves “beyond the law.” Who could even conceive such an idea in a free country? How could any society of self-governing citizens ever deliberately place itself under that kind of authority, where law enforcement agencies think that people who protect personal information want to create a special place for themselves that is beyond the law?
Comey’s position implies surveillance without limits. If you can’t protect the data on your phone, you can’t protect health information, financial information, employment information, information about your children or other relatives, information about who you know or what organizations you belong to. Note too that surveillance without limits makes ordinary citizens into outlaws. The FBI wants you inside the corral, not ranging around free outside the fence. You can’t be monitored when you’re out there.
Under this regime, where law enforcement’s freedom of action serves the goal of limitless surveillance, your desire to protect personal information places you “beyond the law.” By now you may have recalled Winston Smith’s position in 1984.
Even more telling, consider Mr. Comey’s response if citizens were to insist that law enforcement agencies like the FBI should not hold confidential information. You know he would not compromise his agency’s freedom of action in order to make all of the agency’s records available to citizens. He would also not concede that the FBI places itself beyond the law because it withholds information from the people it serves.
From the time governments first existed, citizens have rightly distrusted power exercised in secret. It threatens liberty as clearly as anything can. Without a doubt, then, public agencies in a free society may not withhold information from the people who employ them. Conversely, the people who employ law enforcement agencies may withhold any information they like from the officers who protect them. Only a warrant from a magistrate may compel them to reveal what they would not otherwise reveal. The articles in the Bill of Rights clearly specify what public agencies must do to coerce information from citizens.
The government actually talks with companies who make phones, to persuade the companies not to sell phones that protect your personal information. He suggests that people who want to withhold their information from police officers do not even deserve protection of the law, that they are in fact not citizens. Comey’s view of who is beyond the law, and who is not, shows the distance we have traveled towards tyranny.
Incidentally, we celebrated the 227th anniversary of the United States Constitution on September 17, one week ago. It became the founding legal document of our once-republic in 1787. Last I checked, it was still breathing under the FBI’s heavy boot, albeit shallowly.