On October 22, the former general counsel of the FBI Jim Baker published a lengthy and astonishing piece called “Rethinking Encryption.” In that article, the conservative-leaning current director of national security and cybersecurity at the R Street Institute advised the Justice Department and law enforcement to “embrace reality and deal with it” when it comes to encrypted communications.
Running counter to the now decades-long on-again and off-again pursuit by the Justice Department and law enforcement for a backdoor that would allow access to encrypted communications, Baker wrote that encryption “is one of the few mechanisms that the United States and its allies can use to more effectively protect themselves from existential cybersecurity threats, particularly from China. This is true even though encryption will impose costs on society, especially victims of other types of crime.”
What triggered Baker to write the piece is the recently renewed push by the Justice Department under William Barr to raise again the idea that law enforcement is “going dark” thanks to the rise of end-to-end communications encryption, unable to track terrorists and predators as they carry out their misdeeds.
Although Baker in his piece spells out a number of good reasons why he thinks the feds should just give up on the notion of encryption backdoors, he hits the nail on the head when he writes “there is no law that clearly empowers governmental actors to obtain court orders to compel third parties (such as equipment manufacturers and service providers) to configure their systems to allow the government to obtain the plain text (i.e., decrypted) contents of, for example, an Android or iPhone or messages sent via iMessage or WhatsApp.”
Baker doesn’t explicitly cite it, but one significant impediment to the government’s ability to compel third parties to alter their systems is the First Amendment right to free speech, specifically the free speech rights of equipment makers and service providers themselves. Despite his omission of a First Amendment analysis, there is a long history of complex legal developments that wrestle with the notion of whether encryption is entitled to First Amendment protection and whether encryption code or technology qualifies as “speech” entitled to protection from government interference.