The Fourth Amendment, which guarantees “the people” security “in their persons, houses, papers, and effects,” is the go-to citation for those protesting NSA cyber surveillance and, doubtless, will also be cited in opposition to the agency’s wholesale assault on digital encryption recently exposed in the Snowden leaks. We believe, however, that the First Amendment may be even more relevant, especially where universal decryption is the issue.
As everyone knows, the First Amendment bars Congress from (among other things) making any law “abridging freedom of speech.” In a legal sense, “freedom” is intended as an absolute attribute and right. In a practical—de facto—sense, however, there are degrees of freedom and thus degrees of “free speech.” The freest speech, we contend, is encrypted speech (including encrypted data of any kind) because it protects exclusive use and admits of the least incursion, interference, preemption, or alteration by those other than the creator of the speech and its intended recipient(s). The nullification of encryption by a government agency covertly corrupting Internet service providers’ guarantees of secrecy is an attack on this freest of free speech and therefore an especially egregious violation of First Amendment rights.
Secrecy is the newest freedom of speech, and it is under intensive assault not only by the NSA but by profit-driven private corporations collaborating with the government agency. Writing for Counterpunch, Alfredo Lopez suggests one way of foiling the government’s corruption of industry is to cut out the profit motive, without which there can be no corruption. Lopez cites the Open PGP protocol—“a free and open source answer to the more popular proprietary Pretty Good Privacy protocol”—as an alternative encryption for your email. It actually provides “much more” protection from decryption because “Open PGP is not owned or controlled by any one company so the government can’t make ‘deals.’” Indeed, Lopez argues, using free and open source software (FOSS) “helps free us from the corporate control that is the lynchpin [sic] of this government surveillance strategy.”
Corporatist systems of government, in which the state and industry enter into an unholy alliance, have histories neither savory nor long-lived. (Think Mussolini’s Italy and Hitler’s Germany.) And Americans in particular cherish a high-profile historical example of the consequences of collaboration between a government and an enterprise at the expense of the consumer. When the British government struck a deal with the East India Company to use a tax law as a means of enforcing a tea monopoly upon the American colonies, the Sons of Liberty dumped 342 costly chests of East India tea into Boston Harbor.
Pushed, citizens rebelled on December 16, 1773—to the detriment of both the British Empire and the East India Company. Pushed, Internet users, not just in America but all over the world, may likewise rebel against governments (the UK Government Communications Headquarters—GCHQ—is as gung-ho on universal decryption as the NSA) as well as those in private industry who violate promises, contracts, and consumer trust to collaborate with governments.
Those governments presumably understand the consequences of corrupt deals struck in the name of national security—of security violated in the name of security. Clearly, they have accepted the costs and have made their bargain. We suspect, however, that the digital industry has not run all the numbers. They certainly should. When free alternatives to for-pay services are readily available, the laws of the marketplace greatly favor free under all circumstances. In this particular circumstance, “free” is also free of the corruption consumers are being asked to pay for. Surely, the time has come for the industry to reassess its current, less than competitive, value proposition.