Anonymity, Encryption, and Propaganda

-- By EthanThomas - 03 Mar 2017

Introduction

This paper briefly discusses efforts to frame anonymity and encryption -- vital tools to free expression, uninhibited communication, and autonomous life in a world of snooping and surveillance -- as dangerous and unnecessary instruments of criminality. It examines the legitimate need for modern tools that preserve anonymous communication and protected data, the attempts to undermine the usefulness of these tools, and the harm of this campaign against privacy-promoting technology.

I. The Growing Need for Anonymity and Privacy

Communications can be protected in two important ways: namely, the author or the contents (or both) can be hidden from onlookers. Technology, private corporate interests, and government surveillance make the need for both forms of protection higher now than it ever has been.

A. The Demand for Protected Communication Is Legitimate

Modern communication and information storage is difficult to analyze through founding-era views of privacy. In a world where communication channels were limited and means of snooping were rather blunt (e.g., intercepting parcels and searching physical places), boundaries were simple to draw and it was much easier to expect privacy absent these clear methods of intrusion. Situations calling for a mechanism of storage impossible for anyone in the world to open unless they had an intangible key are hard to imagine.

Now, however, covert observation is widespread. The effort required to tap into years of extremely intimate information about a person is minimal (consider access to a Google account containing perfectly archived emails, cloud storage, photos, calendar data, and more). The government can and does conduct wide-scale dragnet surveillance. The public has a stronger need than ever for tools that protect information from unauthorized viewing and mining, both by the government and private actors.

This need is more than an abstract desire to keep personal effects secret to avoid embarrassment; rather, individual autonomy is drastically undercut when the threat of monitoring always lurks in the background. "Autonomy is vitiated by the wholesale invasion of secrecy and privacy. Free decision-making is impossible in a society where every move is monitored . . . ."(1) The ability to communicate anonymously or free from this fear of eavesdropping is central not only to personhood, but to a functional democracy as well.(2)

B. The Need for Protected Communication Is Stronger Than Ever

Even with relatively secure means of communication, government access is a serious concern. Last year, the FBI sought information (which it learned was unobtainable) about users of the encrypted messaging app Signal.(3) This request involved account holder information, but other requests have sought to reach the contents of encrypted messaging -- most notably, encrypted email service Lavabit was required by a court order to turn over its private keys, which would have given the government the ability to break through the encryption of _all Lavabit email accounts.(4) The service opted to shut down rather than compromise user data,(5) but because it was subject to a gag order, it is uncertain how many such services have received and complied with such requests. The regular use of national security letters in this context amplify these concerns, because there is little to no judicial oversight.

Government access by voluntary disclosure or cooperative programs with companies that host data or communication services is perhaps a greater concern, because there is no advocate for the end user; instead, if data is turned over routinely and voluntarily, lay users may expect their assurances of privacy to be respected without understanding the extent to which their data can be easily shared.(6)

Further, the privacy interests discussed above can be -- and are -- undermined by private actors accessing personal communications and information; government surveillance is a serious privacy concern, but so is exposure of data to others for snooping, profiling, extortion, etc. These concerns arise when users' information is compromised due to large-scale data breaches or targeted hacking, but also when the host of the data mines the information for marketing or other profitable purposes.

These concerns are severe and nearly omnipresent in widely used online services. The danger is not only in actual theft or loss of privacy, but in the fact that users will often never know who is seeing their private correspondence, when it is being monitored, and for what purpose the data is used. Thus the need encryption and reliable anonymity that can provide reasonable assurance against such intrusions is significant if the threat of constant observation is to be curtailed at all.

II. The Government's Vilification of Encryption

The government has taken a strong stance against secure means of communication, and encryption in particular, by highlighting instances where criminals or terrorists use these tools, perpetuating the "if you have done nothing wrong, you have nothing to hide" narrative,(7) and insisting that privacy is compatible with uninhibited government access to records and communications. These tactics and the overall message against encryption ignore legitimate need for the technology, and they reveal troubling motives to the government's approach to technology, privacy, and free speech.

A. Association with Criminality and Delegitimization

One tactic that has recently gained favor is to associate secure or anonymous communication with terrorism. To be sure, the association of tools the government dislikes with criminal behavior is not a new phenomenon. The current narrative, however, creates a strong tie between criminality and the use of certain technologies that aims to stigmatize their use.

In one report (by a private firm), Tor, VPN services, and several messaging applications are identified as "Tech for Jihad."(8) Tor in particular has gained a reputation as "the web browser for criminals,"(9) merely because it helps to anonymize users. Telegraph, an app which can send encrypted and self-deleting messages, has been identified as "the app of choice for jihadists."(10)

The government has itself played a role in associating privacy-protecting or anonymizing tools with criminality. The standoff between Apple and the FBI over the San Bernardino shooter's iPhone, in which the FBI demanded software from Apple to essentially crack the encryption of any iPhone, brought to the forefront the government's discomfort with encryption.(11) The Manhattan District Attorney's Office argues that "[t]here is an urgent need for federal legislation that would compel software and hardware companies that design or build mobile devices or operating systems to make such devices amenable to appropriate searches."(12).

B. Flaws, Motives, and Dangers of This Campaign

Importantly, this message is not only pushed by the government, but media perpetuates it as well.(13) The treatment of encryption and anonymity is thus largely akin to propaganda.(14) This treatment makes sense: encryption is easy to implement and access (for example, RSA encryption utilizes basic number theory, and a simple program can create extremely difficult-to-break encryption), so the best way to keep people from it is to treat it as if it were dangerous or presumptively criminal. In other words, the goal is to change behavior through misinformation and fear, rather than through direct enforcement. This is at its core self-censorship and self-regulation, gradually imposed on the citizenry.

Not only does anonymity have Constitutional underpinnings in the publishing context,(15) but the ability to speak and communicate anonymously in a world where everything is monitored and recorded is paramount to privacy.(16) Indeed, anonymity is one of three key components of privacy, the other two being secrecy (which encryption and secure communication tools help protect) and autonomy.

While anonymity and secrecy are directly offended by a war on encryption, autonomy is also a victim. As discussed above, the persistent threat of monitoring and censorship severely limits the ability to express, act, and ultimately think on one's own. The notion that people who seek to act autonomously by guaranteeing freedom from these intrusions are dangerous (or even criminal) demonstrates a troubling lack of respect for these principles of autonomy from those in power, but also threatens to suppress expression and uninhibited behavior by making individuals and communities police themselves. If people are told that they have nothing to hide if they have done nothing wrong, and companies adopt this narrative (for their own purposes or by prohibiting customers from using anonymizing tools),(17) then suppression of ideas and identity could become the norm. Simply put, the best way to ensure that behavior can be comprehensively monitored is to normalize snooping (by both the government and private parties) and to stigmatize evasion of such intrusions.

III. Moving Forward and Embracing Technology as a Defender of Autonomy

The views of the government -- and increasingly, the view of corporations and society -- toward encryption, anonymity, and secrecy are contrary to principles of a free society. They stigmatize true expression and a desire to behave unscrutinized. Even if privacy is purely a negative right (that is, the right not to be monitored by the government absent reasonable and legally compelling justification), the campaign described here violates this right.

It is not enough that the government take a step back and allow the public to embrace these tools. Privacy -- which includes access to anonymity and secure communication -- is paramount to individual autonomy and functioning democracy. These values are indispensable to fundamental American guarantees of liberty and security of the individual. It is thus not enough to make promises of these rights; the people must have access to tools that guarantee them. Instead of undermining these tools where possible and campaigning against them where they cannot be broken, the government could acknowledge these tools as central to the guarantees of American freedom and democracy. The public must demand this change of position.

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Notes

1 : Eben Moglen, Privacy under attack: the NSA files revealed new threats to democracy, https://www.theguardian.com/technology/2014/may/27/-sp-privacy-under-attack-nsa-files-revealed-new-threats-democracy.

2 : See id.

3 : Open Whisper Systems, Grand jury subpoena for Signal user data, Eastern District of Virginia, https://whispersystems.org/bigbrother/eastern-virginia-grand-jury/.

4 : Ladar Levison, Secrets, lies and Snowden's email: why I was forced to shut down Lavabit, https://www.theguardian.com/commentisfree/2014/may/20/why-did-lavabit-shut-down-snowden-email.

5 : Id.

6 : The PRISM program is one example of such a program. See Timothy B. Lee, Here’s everything we know about PRISM to date, https://www.washingtonpost.com/news/wonk/wp/2013/06/12/heres-everything-we-know-about-prism-to-date/.

7 : For one discission of this argument, see Alex Abdo, You May Have 'Nothing to Hide' But You Still Have Something to Fear, https://www.aclu.org/blog/you-may-have-nothing-hide-you-still-have-something-fear.

8 : See Flashpoint, Tech for Jihad, https://www.flashpoint-intel.com/wp-content/uploads/2016/08/TechForJihad.pdf.

9 : See Business Insider, Comcast Denies It Will Cut Off Customers Who Use Tor, The Web Browser For Criminals, http://www.businessinsider.com/comcast-threatens-to-cut-off-tor-users-2014-9.

10 : See Washington Post, The ‘app of choice’ for jihadists: ISIS seizes on Internet tool to promote terror, https://www.washingtonpost.com/world/national-security/the-app-of-choice-for-jihadists-isis-seizes-on-internet-tool-to-promote-terror/2016/12/23/a8c348c0-c861-11e6-85b5-76616a33048d_story.html.

11 : See, e.g., NPR All Tech Considered, A Year After San Bernardino And Apple-FBI, Where Are We On Encryption?, http://www.npr.org/sections/alltechconsidered/2016/12/03/504130977/a-year-after-san-bernardino-and-apple-fbi-where-are-we-on-encryption.

12 : Manhattan District Attorney's Office, Smartphone Encryption and Public Safety, http://manhattanda.org/sites/default/files/Report%20on%20Smartphone%20Encryption%20and%20Public%20Safety:%20An%20Update.pdf.

13 : See citations in Part II.A from media outlets.

14 : (See Oxford Dictionaries, Propaganda, https://en.oxforddictionaries.com/definition/propaganda "Information, especially of a biased or misleading nature, used to promote a political cause or point of view.").

15 : McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).

16 : See id. at 342 (""The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."); see also Talley v. California, 362 U.S. 60, 64-65 ("Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.")

17 : See Business Insider, Comcast Denies It Will Cut Off Customers Who Use Tor, The Web Browser For Criminals, http://www.businessinsider.com/comcast-threatens-to-cut-off-tor-users-2014-9; see also PC World, Google's Schmidt Roasted for Privacy Comments, http://www.pcworld.com/article/184446/googles_schmidt_roasted_for_privacy_comments.html (citing Schmidt's comment that "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place . . . .")

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