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August 25, 2016

Who Will Protect Us from Our Government Protectors?


You just can’t make this stuff up.

For several years federal security and law enforcement agencies such as the FBI and the National Security Agency (NSA) have been pushing back against the use of encryption technologies.

In fact, this conflict actually goes back 20 years, from the early days of the internet. But the controversy has escalated recently, with technology companies like Apple and others incorporating such robust encryption into their products that they say even they as the manufacturers couldn’t unencrypt the data if requested.

In the past these law enforcement agencies have insisted that encryption not be used at all, or that if it is used, the federal government had to have access to the encryption keys. More recently, their position has been that hardware and software manufacturers had to purposely build “backdoors” into their products to allow access when law enforcement determined that it needed access.

Groups like IPI that value our Fourth Amendment right to privacy have made a number of arguments against the federal government mandating such security weaknesses in technology products—one of which is that the very agencies demanding access to your data are themselves not completely reliable or invulnerable. Who is to say that your encryption keys and other data are safe with them?

Well, as if on cue, on August 15 a group called “Shadowbrokers” announced that it had gained access to hacking tools from the NSA’s elite hacking unit. That’s right—the NSA itself was hacked, and the NSA-origin of the software tools has been validated.

This is more than just ironic. When the NSA learns of vulnerability in a particular piece of software or technology, it collects this information so that it can exploit the vulnerabilities. This is in addition, of course, to the enormous amounts of other information that we know the NSA collects though it normal mission. How much of this information might be vulnerable to hacking? How much of it may have already been obtained?

It’s a good reminder that the purpose of the Fourth Amendment’s privacy protections is specifically to protect your privacy from the government. It’s not about protecting your privacy from Best Buy, or your local grocer, or from your neighbors. The Founders recognized that government has unique powers that other institutions do not have, such as the ability to use force. Hewlett Packard cannot smash through your front door, kill your dog and take your children, but the government can.

That’s why we must stand up to government agencies that think they are somehow entitled to exemptions from Fourth Amendment protections. While these agencies may exist for our protection, the Fourth Amendment limits them, not us.


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