/ Cory Doctorow / 6 am Mon, Dec 8 2014
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  • Judge Posner: it should be illegal to make phones the government can't search

    Judge Posner: it should be illegal to make phones the government can't search

    Cory Doctorow on why privacy is about more than concealing crime—and why backdoors are inevitably available to everyone, not just people you trust.

    Speaking at a Georgetown law cybercrime conference, 7th circuit judge Richard Posner made a series of conscience-shocking, technologically illiterate statements about privacy that baffle and infuriate, starting with: "if the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine."

    Posner went on to say that privacy is "mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

    On the idea of default full-disk encryption, he added "I’m shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search."

    It's amazing that Posner -- who sometimes can evince nuanced views -- can't figure out that privacy is more than hiding your closet-skeletons. Privacy isn't just vital for developing unfinished ideas with people you trust, allowing your work to be reviewed by trusted circles before you commit it to posterity -- it's also especially vital for the most vulnerable people among us, people whose health, race, sexual orientation, and other traits make them subject to discrimination and prejudice.

    People like Posner, who believe that they have nothing to hide (he's almost certainly wrong here, but let's assume he's right), have won a lottery through no virtue of their own. But he -- and you, and I -- have people we love who didn't win the lotto, through no fault of their own. When they speak out for privacy, they magnify their vulnerability. It's the duty of lotto-winners to speak up for everyone else.

    Posner also conflates secrecy with privacy, another nonsense. Your parents did something un-secret to make you, but I'm willing to bet that Posner doesn't want his own non-secret, baby-making activity to be recorded and viewed by strangers.

    Just as grave as his philosophical errors are Posner's technological errors. It's been nearly 20 years since Bernstein v US, when judges were given a crash-course in crypto. Even if you support the idea that the government should be able to search anything it wants to if a judge like Posner (or even a rubber-stamping FISA court judge, meeting in secret, without any chance to hear from anyone except government lawyers) gives them permission, there's no way to make a back door that only good guys can walk through.

    That means that a mobile device that the government can search is also a mobile device that criminals -- identity thieves, voyeurs, corporate spies -- and invasive corporations, and foreign spy-agencies can all search. Your bank's safe has a door that can withstand a SWAT-team's battering ram, which means that it can also withstand the most determined burglar. Making a law that requires weak-spots in the safe-door to let the cops get in will make the safe unsuited for keeping out robbers. Posner should understand this. If he doesn't, his clerks should be educating him.

    “I think privacy is actually overvalued,” Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, said during a conference about privacy and cybercrime in Washington, D.C., Thursday.

    “Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct,” Posner added. “Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you.”

    Congress should limit the NSA’s use of the data it collects—for example, not giving information about minor crimes to law enforcement agencies—but it shouldn’t limit what information the NSA sweeps up and searches, Posner said. “If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine,” he said.

    In the name of national security, U.S. lawmakers should give the NSA “carte blanche,” Posner added. “Privacy interests should really have very little weight when you’re talking about national security,” he said. “The world is in an extremely turbulent state—very dangerous.”

    Posner criticized mobile OS companies for enabling end-to-end encryption in their newest software. “I’m shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search,” he said.

    Judge: Give NSA unlimited access to digital data [Grant Gross/PC World]

    (via Interesting people)

    (Image: Richard_Posner_at_Harvard_University, chensiyuan, CC-BY-SA)

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