Law in the Internet Society

The "Claws" of the Weak

-- By AnnaShifflet - 23 Jan 2015

Introduction: Surveillance as Weapon

In December Julian Assange wrote about the internet and power, describing with foreboding our surveillance society. The article highlights George Orwell’s prescience in describing the geopolitical landscape of the second half of the twentieth century, and the consequences of large weapons in the hands of few. By way of analogy, Assange describes the internet, surveillance mechanism by design, as one of these extraordinary weapons.

What’s more is that major companies like Google and Facebook work with governments to maintain and strengthen the surveillance network. Due to these relationships, citizens' options in fighting surveillance become more limited and more unlikely, because not only do they involve opposing the current government, they involve opposing major commercial players.

The Claws of the Weak

Orwell described the need for a “democratic weapon” to give “claws to the weak”: “[A]ges in which the dominant weapon is expensive or difficult to make will tend to be ages of despotism, whereas when the dominant weapon is cheap and simple, the common people have a chance. . . . A complex weapon makes the strong stronger, while a simple weapon – so long as there is no answer to it – gives claws to the weak." Assange, continuing his analogy, named cryptography as that democratic weapon. Cryptography encompasses techniques for secure communication between parties, and includes encryption, the translation of information through encoding and decoding using keys. One reason encryption is capable of responding to the surveillance society is that it does not work to fight interception, but rather denies content to the interceptor. Consequently, encryption can disrupt the value of the surveillance society to the surveillers without taking down the whole system.

Declawing the Weak

Unsurprisingly, in sensing the power of encryption to fight surveillance, governments have responded with efforts to weaken encryption or limit its use. While encryption is virtually impossible to break, its primary vulnerability is that if a private key is discovered or obtained, the message can be decoded, and the encryption fails to protect the content. Therefore, protection of and privacy for encryption keys is of the utmost importance.

Legal and Political Techniques

Britain, for example, has weakened encryption as a weapon for the weak throughamendments and additions to its 2000 Regulation of Investigatory Powers Act. The Act regulates surveillance and investigation, including communications interception. Significantly, Part III requires the supply of decrypted information and cryptographic keys to the government in certain situations, and criminalizes refusals or failures under penalty of two to five years in jail. Britain is not alone in having such a law. Many other countries have laws that either mandate key disclosure or decryption of data. Disclosure laws reinforce the government’s surveillance power by making encrypted content subject to revelation.

In the United States, citizens are afforded somewhat greater protection against disclosure of their cryptographic keys. The Fifth Amendment affords citizens the right to avoid self-incrimination, and no key disclosure law exists on the books. The case law varies on whether the Fifth Amendment applies to decryption at the district court level, but the 11th Circuit ruled in United States v. Doe that forced decryption of a laptop is a Fifth Amendment violation. However, the FBI has subpoena powers in national security investigations to compel data decryption. For example, in a high profile case, the government tried to force Lavabit, a secure email provider, to provide users' private SSL keys, in particular Edward Snowden's. Rather than comply, Lavabit’s founder shuttered the company.

In addition to key disclosure laws, the relationships between the tech industry and government discussed above provide a way around encryption. For example, although Lavabit chose to close rather than comply, and the incident involved a court order rather than a contract, governments can ask tech companies to provide a “back door” to encryption, allowing decryption when presented with a warrant. For example, Apple’s recent decision to close its back door protects consumers for now, but Apple may revisit the decision in the future.

Furthermore, governments may ban technologies that inhibit surveillance or companies that refuse to provide a back door. Recently, in response to the Charlie Hebdo attack, David Cameron made a statement about banning encryption. Although Cameron’s plan has been roundly criticized as infeasible and technologically illiterate, government bans on surveillance limiting technologies remain a scary possibility.


In addition to the government’s technical and legal tools for surveillance, it seems Snowden’s revelation and disclosure efforts may have had unintended consequences. Now that surveillance by telephone and email, through relationships with major wireless carriers and email providers, is widespread and widely known, government actors and even judges are using existing surveillance as justification for increasing surveillance and the battle against privacy protections. For example, district court judge in the Lavabit case, Claude Hilton, wrote: “[The] government’s clearly entitled to the information that they’re seeking, and just because you-all have set up a system that makes that difficult, that doesn’t in any way lessen the government’s right to receive that information just as they could from any telephone company or any other e-mail source that could provide it easily.” David Cameron took a similar approach in his comments about banning encryption. Cameron listed the government’s current ability to read a letter, listen to a call, and access mobile communications in support of his plan.


Orwell described the need for a democratic weapon to give “claws to the weak." Assange gave this statement meaning in the context of todays' “surveillance society.” While Assange names cryptography as the democratic weapon, governments are fighting cryptography to the extent that it interferes with their surveillance activities. Given the close ties between industry and government, and the government’s expansive legal powers to maintain surveillance, perhaps the most dangerous position to be in is one in which the government allows the "claws" of encryption, but dulls them beyond significance by contracting for back doors and implementing key disclosure laws.

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r2 - 24 Jan 2015 - 20:32:43 - AnnaShifflet
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