Why the fight for data encryption is the second amendment battle for the digital age

FBI director James Comey made headlines last week for saying that the bureau is gathering information about the encryption strength of Apple’s iOS 8 mobile-operating system. He also expressed concern that Apple is marketing “something expressly to allow people to place themselves beyond the law.” Those concerns were echoed this week by outgoing Attorney General Eric Holder.

Washington’s worry about advances in consumer-level encryption capabilities — an attempt to stay ahead of the digital surveillance capabilities revealed by whistleblower Edward Snowden — could lead to a confrontation between the government and Silicon Valley. With the new software, Apple claims that it would be “technically unfeasible” to comply with government warrants for data stored on iPhones, since the user alone would have the access key. Law enforcement would need a judge’s order to get iPhone owners to relinquish their key, but could still gain access to personal data stored on Apple’s iCloud server.

The situation has Internet activists bracing for a fight to protect what might be considered the second amendment of the Internet: the right to encrypt.

That’s right, the Second Amendment. Strange as it might sound, prior to 2000, high level encryption was considered a munition that was regulated under the second amendment, which establishes the right to bear arms.

So from the government’s perspective, exporting encryption technology was akin to trafficking munitions. That why U.S. Customs Service went after coder Phil Zimmermann in 1991 for developing email encryption software that was made available for download overseas. The government investigated Zimmermann under the Arms Export Control Act, but the investigation was dropped in 1996 without indictment. Encryption technology was later reclassified under laws regulating software.

Zimmermann remains adamant about the importance of privacy.

“Wherever you see an oppressive state — from North Korea and China to Russia and others — the first thing they make sure of is that people don’t have privacy,” he told Fusion in phone conversation from San Francisco.  Zimmermann says consumers’ desire for better encryption software is “mostly coming as a pushback against governmental excess that many feel was taking their freedom of privacy away from them.”

“We live in a golden age for surveillance. Unfortunately, it’s not a golden age for our civil liberties,” Zimmermann continued. “Back in the ’90s, if you were using strong cryptography, you would have to justify it. But now if you’re not using it, you have to justify it.”

Companies such as Apple realize that it’s bad for business to be  perceived as being too cooperative with U.S. law enforcement, especially in foreign markets where customers are leery of NSA surveillance, Zimmermann said.

The U.S. government currently has access to most metadata, thanks to a concept known as the “third-party doctrine,” which basically says that there is no “legitimate expectation of privacy” for individual phone records, since that information is already available to the phone company.

Still, there’s some discussion to updating that law, which is from 1979. Most notably, Justice Sonya Sotomayor said that “it may be necessary to reconsider” the doctrine in a dissenting opinion of a 2012 GPS tracking case.

Metadata stored in the cloud can still be accessed by law enforcement, but access to the actual content stored on phones using Apple’s iOS 8  cannot be accessed remotely, or without the password key. Sometimes law enforcement takes advantage of the blurred lines between metadata and content, says Shayana Kadidal, a fourth amendment attorney with the Center for Constitutional Rights.

Some gun advocates equate the government’s presumed efforts to regulate encryption technology to an imagined government intrusion to seize firearms.

“People deserve to have firearms; we deserve to have all the protection from the government that we can get, including having access to this software,” Michael Cargill, owner of Central Texas Gun Works in Austin, Texas, told Fusion. The gun shop is notable to the online community for its blend of Internet-savvy Bitcoin advocacy, gun rights and Libertarianism.

Is the right to encrypt personal data and information an inalienable right that should be protected in the same constitutional breath as the right to bear arms?

We must recognize that an assault rifle— or front-loaded musket, depending on how old you are — is no longer adequate defense from the potential intrusions of government. As technology continues to change the way in which we live our lives, our rights of recourse must adapt accordingly.

Daniel Rivero is a producer/reporter for Fusion who focuses on police and justice issues. He also skateboards, does a bunch of arts related things on his off time, and likes Cuban coffee.