FBI director James Comey complains that his bureau is having a hard time tracking home-grown raghead recruits because as soon as they get hyped up and contact an outfit like ISIS, they’re directed to get an encrypted smartphone for all subsequent communications with the jihadists. And modern encryption techniques are so powerful that third parties, including the FBI and NSA, cannot decrypt their conversations. So the government has been pushing the big tech companies to make all smartphones with a ‘back door’ for which government has the key. The tech companies correctly point out that “there is no technical way to protect their users’ legitimate privacy with encryption while also enabling intelligence agencies and law enforcement to gain access to what terrorists plot online.”
So reports Gordon Crovitz in his 6jul15 ‘Why Terrorists Love Silicon Valley’. However, there is a technical approach that would go a long way to satisfying the feds, but the tech companies have every reason to contest it on at least two grounds. First, implementing the approach makes ‘cracking the code’ easier, and second, why allow demonstrably incompetent agencies of a technologically imbecile government to have access to their customers' information. The probability approaches certainty that any data that feds can sniff from your private affairs will soon be in the hands of every bad guy in the world. Over the last years it has become obvious to all but the most obtuse progressive, that the bad guys out there are at least as smart as our feds on their best day, a fact they now admit to almost daily.
But Director Comey argues his case for such a technological compromise on the basis of the Fourth Amendment that grants government the right to conduct “reasonable searches and seizures”, and this is my focus here. Crovitz sides with Comey who one ups the Constitution by claiming that the Fourth then also “creates duties for responsible companies to be able to comply” - i.e. facilitate government searches and seizures. However, this interpretation would require a reading of the Constitution similar to SCOTUS’ recent rewriting of the ACA providing subsidies to states without Obamacare exchanges – simply turn English on its head.
Nowhere in the Constitution does it state that private citizens must compromise their own security or privacy so as to make it easy for government to search and seize as permitted by the Fourth. Government’s right to conduct legal and reasonable searches and seizures is totally independent (orthogonal) to the citizen’s right to secure his property and affairs. There are no laws that require you to put weaker locks on your door so as to make it easier for government to bust in, even when they have a legal writ in their mitt. The locks (and other security devices) on your property are purposely as stout as you can afford, and you put them there to keep out thieves.
The Constitution requires of no man that he consciously open himself to predation just to facilitate government’s ingress to his affairs. That government may on occasion obtain and exercise its reasonable and legal right to search and seize what’s yours, by no means automatically implies that you then must at all times maintain your property and affairs in a compromised state that also makes such search and seizure more facile for criminals.