Does the Terrorism Risk Justify Deeper Surveillance of Our Digital Data?

English: US Senator Richard Burr.

English: US Senator Richard Burr. (Photo credit: Wikipedia)

This morning on Face the Nation, John Dickerson interviewed Senate Intelligence Committee Chairman Richard Burr about the investigation into the San Bernardino shooters and what can be done to find people like these before they attack.

Burr argued for more access to internet data – texts, emails, and so forth – so law enforcement can terrorists before they strike.  Seems like a good idea.  Encryption software has become so advanced that it is hard to track this sort of intelligence.  But of course not all encrypted data is a threat.  Organizations, businesses, and individuals use encryption to protect privacy and secure sensitive data.

Dickerson suggested that if law enforcement has access to encrypted data that would potentially make privacy vulnerable to hackers and criminals since whatever “back door” is opened to law enforcement would be an opportunity for people without legitimate law enforcement purposes.

Burr does not answer the concern.  Instead he draws an absurd analogy with pedophilia.  He says if law enforcement were trying to catch a pedophile, Americans would want law enforcement to access encrypted data.  First off, this implies that Americans don’t support pursuing terrorists as much as they do pedophiles, which I doubt is the case.  In fact, my guess is Americans are more concerned about terrorists.  And pedophiles do interact online now.  Are Americans asking for less internet security to find them?  I think Burr has to say they do for this answer to work.

But in any case, this does not answer the question:  Would putting restrictions on encryption – creating those “back doors”, for example – expose Americans to people who would want access to their private information?  Yes or no?

MacKinnon Cartoon - Govt data collectionHe does not answer this.  Instead, Burr creates an unnecessary, but emotionally charged, parallel example to support getting the position that government needs access to private data.

Do you see what is going on here?  The argument employs something like an emotional red herring to distract and move beyond the question of rights to privacy and personal security.

Let me try to counter Burr’s example.  We don’t round up a group of suspects and shoot them all knowing at least one of them is guilty when we don’t know exactly which one.  Right?  That’s what drug lords do.

Civilized freedom entails responsibility.  Conservatives are big about personal responsibility, but what about institutional responsibility, including the government which is supposed to be a government of the people?  Moreover, in our increasingly militarized society, we are reminded that freedom isn’t free.  Freedom needs to be defended.

These risks we take to protect our freedom should extend to the rights of law abiding individuals and organizations.  We have traditions of jurisprudence – and laws behind them – that give innocence the benefit of doubt.  It is better to mistakenly let a criminal go free than it is to mistakenly punish an innocent man.  Right?

It is strange, too, that in a society that tolerates thousands of violent deaths each year — many of those persons innocent of any involvement other than being at the wrong place at the wrong time — would get worked up over the exceedingly rare event of jihadist terrorism in the United States and not get as concerned by the relatively common terrorism committed by our own crazed citizens.  Post-Sandy Hook, any call to regulate guns (even military-style assault rifles) was shot down because it penalized  law-abiding gun owners by infringing upon their rights.

Emotions – especially fear and hate – make a bad foundation for policy and law.  Perhaps more government access to our private data is a smart move, but before we make that decision we need to consider the reasons, scope, and purpose of that move.  We also need to respect the risks.

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