The US Government Should Have Access to All Encrypted Devices of US Citizens

By: Chris Gebhardt, Director of Information Security

Many privacy advocates become apoplectic at hearing the US government’s demand for a backdoor into encrypted devices and communication. I too felt the government didn’t need to see my communications. However, there is a legal justification for such a backdoor. I didn’t like what I found but it certainly made me think and even alter my belief on the subject.

When exploring a topic, especially one as controversial as an encryption backdoor, I always try to examine the belief from the opposing view. I try to remove my own confirmation bias from the formation of opinion. All I ask is that you do the same. Keep an open mind and follow the logic.

Premise: The US government, with a legally obtained warrant, should be allowed access into any encrypted device or software used by a US Citizen.

Under the Fourth Amendment, those in the United States have a protection against unreasonable searches and seizures. It is not an absolute Right however. The Fourth Amendment provides for reasonable searches and seizures supported by a warrant. Courts have ruled that a sworn warrant, issued by a magistrate or judge, compels Citizens to comply with the request of law enforcement. The warrant is a premise that secures our Country and creates balance between privacy and government interest in providing safety and security.

Warrants are accepted by the majority of Citizens in the US. A search of a vehicle often requires a warrant when the scope of the search falls outside of one of the noted exceptions (inventory of a seized vehicle for example.). A search warrant for a home allows government actors to forcibly, if necessary, enter a residence. Castle doctrine is defeated lawfully by the execution of a legal search warrant.

A search warrant can be issued and you can be forced, against your will, to place your finger on the sensor of your device to unlock it. The burden of proof is large but for all of these arguments, we must assume government has met their burden.

Search warrants are also recognized for some of the most sensitive and egregious searches: those of your person and body. A body cavity search is permitted with a legal search warrant. The government can “visit” with your most intimate areas upon the executive of a legal search warrant. They can gather evidence against you directly from you in the form of blood or bodily fluids or even DNA. The Fifth Amendment only pertains to self-incrimination for this debate.

Given the legality of search warrants, there is nothing outside of their purview. Except encrypted transactions and devices right now. If the government can enter your home, your vehicle, and even your personal “space” via a search warrant, why should they not be able to access your device?

From a legal perspective, and solely from a legal perspective, I find no flaw in the logic that the government should be able to access our data, with a legal search warrant, without obstruction.

Now, let’s talk about the practical approach to this idea. The first and foremost idea of creating a backdoor is of hacking. If a backdoor exists, nefarious individuals (whether traditional hackers or nation states) will work day and night to hack, crack, and discover it. That one thought puts me against any backdoors into encryption.

There are other ways though. Manufacturers of encryption software could be required to store their certificates (so to speak) with an escrow company allowing government to access them upon proper notification and documentation. Again, the nefarious individuals will target these places for penetration. And once our certificates are out, so is our data and security.

While I agree with the premise, there is no secure way to implement it. I am curious about others’ thoughts on this subject. Do you agree with the legal precedent?

If not, why?

What makes data different than your blood or other bodily fluids?

NOTE: For this article, I am only addressing a legally obtained targeted search warrant. I am not discussing mass surveillance or unwarranted searches. I still disagree with those.

This article was originally published on Peerlyst.