The basic encryption is like a lock for the front door. It will stop the burglar, which is its main purpose. Super encryption is only needed to stop an advanced burglar not the government. When people talk about advanced encryption to deter the government, it is the equivalent of buying a firearm rather than a lock to secure a house. If you wanted to protect your home from the most powerful burglar, in this case an illegitimate government, you would need the equivalent of nuclear weapons and a private army to secure your property. Therein we see encryption’s political problem.
Those who want to “stop” the government from being able to break encryption would separate a citizen’s digital security from their physical security. They want the citizen to have greater digital security than physical security and that would destabilize the state. Moreover, it would undermine the political obligation that binds a democracy together. The attempt to treat the physical and digital realms differently reflects an incomplete understanding of the natural right foundation of our political rights and our person. Our “digital rights” cannot exist without a natural rights foundation otherwise they are simply a positive right created by the state. Such a view leads to incoherence; the state is to give us digital rights but we stop it from having the power to enforce them. Or, it leads to intellectual anarchy; we have digital rights that have no foundation in our natural person or in the state, only in our digital person, which does not exist. Neither position can sustain a liberal democracy.
To see this problem clearly, consider that we are not allowed to protect our person to the point where the government cannot overcome us. We are not allowed thermonuclear warheads and private armies. Were someone to have that power they would be a law unto themselves. In a democracy, such people would cause it to begin a collapse into anarchy or tyranny. Instead, a democracy is based on political equality before the law and the law is made by a government based on the consent of the people. People consent to a government and within that consent they accept limits to their natural rights in return for limited government. They understand that their freedom is based upon the rule of law. If encryption defeats the government, then the rule of law is under threat, and in turn democracy is threatened.
The dichotomy regarding security in the digital domain is reflected in the confused public opinion on the relationship between political obligation and political legitimacy. The public accept the government’s ability to ensure their physical security and government their physical lives. They are happy, that is they have consent to, to live under a government shapes their lives directly. For example, the government as the public’s agent decides or regulates who they can or cannot marry, who they can or cannot have intimate relationships with, as well as what they can or cannot ingest, or what they can or cannot do in their spare time, and whether they can or cannot obtain a firearm. They also consent to it defending them and the constitution from all threats foreign and domestic. Yet, the same government appears to become illegitimate when it acts in the same way in the digital domain. The government has not taken on any powers in the digital realm which it does not have or use in the physical ream. For some reason we are being encouraged through public opinion that the digital domain is different. The dichotomy reflects how far we have been removed from the natural right philosophy that underpins liberal democracy. We need to look at the growth of the modern state to understand why the government has to extend into the digital domain.
The state’s digital dominance reflects its dominance in the physical realm.
The GCHQ/NSA furore reveals the historical process that has been accelerating for the last 500 years. It took the modern state that long, from its birth, to become the dominant actor in the domestic realm. At its birth, the state was not stronger than some individuals or organisations within its domain. Over time, through political changes and bloodshed, those individuals and organisations were brought within the state’s power. The rule of law applied to all and political equality became possible. Even the Queen and the President are subject to the law. For the law to rule, we need a government, our agent, to be able to overcome any opponent to that law. If there are people beyond the law, then the government loses its legitimacy because law abidingness becomes an arbitrary decision left to each person. When encryption is designed to thwart the government’s ability to enforce the law, it undermines the political equality that is a democracy’s foundation. For the government to ensure the rule of law, it must be more powerful than anyone within the country. The same process is at work within the digital domain. The government understands that unbreakable encryption allows some people, the technologically superior, to resist the state or act beyond the law. When they act beyond the rule of law, justice becomes impossible because political equality before the law no longer exists. As Thucydides warned 2500 years ago, the strong will do as they will and the weak will do as they must because only justice is found between equals. If the technologically superior are beyond the law, then justice, a government’s highest responsibility, becomes impossible.
Is there a limit to how far the government must protect the common good?
We can see the government’s commitment to justice and political equality in regards to physical security in the harrowing cases of Raoul Moat , Derrick Bird and Christopher Dorner. These men placed themselves above or beyond the law. In response, the government of each country had to stop them to fulfil its respective responsibility to the rule of law and to the public. Would we accept as legitimate a police force or a government that said it was not in the public interest to pursue these men? If the government did not have enough weapons to stop them, then the public would be in danger. In a less violent realm, the government’s pursuit of tax evaders or counterfeiters illustrates the same point. Would the public or law enforcement accept a government that said, “This is too complicated, they used really long numbers to defraud you. We cannot figure it out, so they are free to continue.”
If the rule of law does not work, no one is safe.
The public want to be kept safe and they want to know the rule of law works. The public are kept safe by a government that can defeat those who seek to use violence or other illegitimate means to achieve political change. In a democracy elections, and the rule of law, show that everyone rules and is ruled in turn, and no one is permanently superior to another. However, encryption allows some to have technological superiority over others and over the government. Therein, we see how technology creates a political problem.
The problem is not technological it is political.
The problem we face is not technological; it is political. We cannot allow the technologically superior to dominate or exploit the technologically inferior within a democracy. In that case, technological inequality will quickly lead to political inequality because some are able to live beyond the rule of law. The government has to be able to enforce the rule of law. At the same time, a change in technology or encryption will not remove the modern state and its historical political prerogatives. If we want to change the modern state and its historical political prerogatives, we have to change the laws or remove the state. Perhaps it is time to review the terrorism legislation that appears to enable this work. Yet, even that will not change or alter the fundamental social contract a government has with a citizen. Then again, it may be time to restructure the modern state. However, I think few will want that outcome to obtain some sort of “digital privacy”. The modern state has created freedoms or rights that people want and will defend. The call for unbreakable encryption means that the public are being asked to sacrifice their political equality and political rights so that the technologically superior can live beyond the rule of law. Such a demand will destroy democracy and it will either descend into tyranny or anarchy.
 In the case of the Queen, people will recall this took several wars, two civil wars, many people being killed to get to this point. The crown did not accept parliament’s supremacy lightly or willingly and the issue *still* remains unresolved cf. royal prerogative, though it has reached a point of healthy compromise. In the United States the constitution, which enshrines the rule of law and political equality of rights reigns supreme. Even the promise of that document was not fulfilled until a long and bloody civil war was fought to ensure the rule of law and self-government was possible.
- Schneier on NSA’s encryption defeating efforts: Trust no one (networkworld.com)
- Report: NSA has cracked most online encryption (mercurynews.com)