Should Companies Be Forced to Enable Surveillance and Compromise Security? The Government Thinks So.

[UPDATE 9/30/15] If leaked memos are any indication, there is a policy brawl brewing in the Obama administration over encryption. The ultimate decision — which could come at any time — remains unclear.

The Justice Department and others appear to be pushing for various technical changes by companies to provide greater access to encrypted devices and data — at the expense of consumers and security. At the same time, there seems to be a growing recognition that strong encryption is increasingly valuable to safeguard consumers and protect our fundamental rights. Today the ACLU, along with 19 other civil society and business groups, urged the president to make the right choice. We filed a “We the People” petition, which you can join here, asking him to reject policies that would weaken encryption and leave our private information vulnerable.

Companies may soon have even more access to your information — whether they want to or not. 

At a congressional hearing yesterday, the Department of Justice urged Congress to pressure companies to weaken encryption by creating a so-called “backdoor” into products. That’s in response to the increasing use of strong encryption in commercial technology that makes your information inaccessible even to the companies whose tools you use. While the DOJ said they are not pursuing a mandatory backdoor for now — they left the door open to this type of proposal in the future.

The ACLU has long opposed these types of mandates. Weakening encryption standards, whether through a mandate or another form of government pressure, is a lose-lose proposition for security and privacy. 

As experts — including technologists, the president’s own review group, and leading computer experts — have noted, strong encryption promotes greater national security. These experts emphasize that it is impossible to create a law enforcement backdoor that isn’t also wide open to criminals, hackers, and malicious governments. Not to mention the fact that if tech companies give the U.S. government backdoor access, other governments will surely demand the same.  

Just ask the Greeks.

In 2004 and 2005, the mobile phones of dozens of members of the Greek government were spied on by an unknown adversary who exploited a backdoor meant for law enforcement. They’re by no means the only ones who have had their information compromised. 

Google, Microsoft, and the U.S. government’s Office of Personnel Management are only a few of the many victims of malicious cyber actors in recent history. In the wake of these attacks, pursuing a policy that weakens — rather than enhances — information security is misguided.  

Even more, the DOJ has produced no evidence demonstrating that encryption has been a barrier to legitimate investigations. On the contrary, according to recent reports, federal agencies encountered encryption in wiretaps only three times in 2014; only twice were they unable to decrypt the information. 

The reality is that law enforcement has more access to electronic information — from emails, to call metadata, to location information — than ever before. In this golden age of surveillance, the government should not be considering proposals that provide even less privacy and security to Americans. 

The problem, however, isn’t just one of security. 

Mandating a backdoor into every electronic device is the expansion of a very dangerous idea: that the private sector should be responsible for building the surveillance infrastructure of the government. Such a policy essentially amounts to a surveillance tax on companies, and by extension consumers, simply because they chose to innovate and provide more secure products.    

Moreover, opening all electronic communications to possible government scrutiny threatens the very notion of free expression and an open Internet. Fear of government surveillance creates a chilling effect, dissuading journalists, activists, and the public from engaging in protected speech. As reports have shown, fear of government surveillance has already made it more difficult for journalists to communicate with sources, leading to self-censorship and hindering reporting on critical national security issues.

That’s why the State Department itself has invested in encryption technologies that allow human rights activists and journalists abroad to communicate securely and anonymously — minimizing the likelihood that they will be targeted by repressive regimes. It’s also why many of our nations’ founders, including Thomas Jefferson, James Madison, Alexander Hamilton, and George Washington, communicated through encrypted letters.

And yet rather than applauding the march toward a more secure Internet, the DOJ is seeking to take us backward. If we let them, both privacy and security will lose out.  

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On priniple, the government or any other intity has no right to my private mail of any kind, be it in the former of pictures or words. I have nothing to hide from my life, but things I have done could be cut and pasted to make it seem that I should have something to hide. I do not like the idea of "Big Brother" looking over my shoulder at what I do. Give up a little freedom, they will take a lot. Get people conditioned to letting small infringements go by, and they will ultimately lose more than they bargained for.


Sorry Ak-loo (ACLU), but I'm agreeing with the government on this one. I realize the freedom of anonymity will dissapear from some places but perhaps it should. I don't believe camera feeds should be unilaterally available to government agencies, however if something like a terrorist act occurs at a mall the feeds could help catch or prevent such activity. On the other hand it's not necessarily the big bad Muslim terrorist I fear, it's the 17 year old fascist/racist kid showin out with his drunk daddy's AK.


When did we decide to switch from "land of the free and home of the brave" to "land of the spied upon and home of the chicken shit?"

Steve Hutch

I can't praise the ACLU for the incredible work it does but on this issue I'm somewhat conflicted. I was especially concerned when I read that the ACLU is fighting in the courts to shut down the government's program of phone data collection. Now, I'm happy with this program. I want it to stay for my protection. So who is the ACLU advocating for on this? Is this what the public really want or is it just seen as the right thing to do? Maybe I'm misinformed but exactly who ARE these people who are so afraid of government surveillance? Most rational people understand that in this terror filled age this data trawling is necessary to, at least, try preempt terrorism. Sometimes I worry that privacy groups and activities get so bogged down with the theory of protecting rights that they loose perspective on the reality that no one is actually being harmed. I dunno, maybe the NSA should remind folks that this information will not be used against law abiding citizens. And I for one will happily "opt in" to allow the NSA's computers to scan my emails if it meant saving a life somewhere, sometime.

Steve Hutch

Correction: Sorry my previous comment should have begun with "I can't praise the aclu ENOUGH for the incredible work it does..."


Steve Hutch:

Your position is understandable but the part that is missing from your equation is post 9/11 "blacklisting" which is really the most insidious practice of executive branch agencies.

There are no hard statistics on blacklisting and due to excessive secrecy the general public only finds out about decades later. It sounds harmless but blacklisting programs like CoinTelPro also included assassinating U.S. citizens on U.S. soil without charge, trial, judge or jury (Ex: Fred Hampton assassination engineered by the FBI and local police).

In blacklisting sometimes the citizen never knows they are being harmed or destroyed so they can't file a police report or report this government corruption to watchdogs. Government officials do this when the citizen is innocent and there are no legal ways to silence freedom of speech or other legal activities (Ex: the FBI tried to get Martin Luther King, Jr to commit suicide through extortion using embarrassing information).

There is a reason the Founding Fathers created a "wartime" charter designed to be followed during wartime - U.S. Constitution - they studied over 2000 years of world history on why empires fail and how to prevent it from happening to us. We should be very cautious letting politicians and bureaucrats rewrite James Madison!

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