In the context of:
- The Federal Bureau of Investigation's all-consuming lust for instant backdoor decrypted access to every 1 and every 0, everywhere, and
- Computer, telecommunications, and Internet companies' resistance toward granting that access, now that they've taken a financial hit in the wake of Mark Klein's, Edward Snowden's, and others' revelations of those companies' earlier complicity in undermining customers' privacy
FBI Director James Comey
asked this:
Have we become so mistrustful of government and law enforcement in particular that we are willing to let bad guys walk away, willing to leave victims in search of justice?
Yes.
That's right, Director Comey. It is indeed better to have no government at all than one that regularly abuses its position to violate the rights of the people.
Given that the government has taken positions such as:
- Any email that's on a third-party server for more than six months is considered "abandoned" and therefore fair game for the government to copy, database, and read without a warrant
- Communications "metadata"—the time and day, sender, and recipient(s) of a call or message, among other information extraneous to the content of the communication in question (and perhaps even some of the content itself as well)—are always fair game for the government to copy, database, and read without a warrant
- Any communication that the government considers to have a 50.000001% chance of being from and/or to a foreign person is fair game for the government to copy, database, and read without a warrant
- Any communication within a number of personal-association "hops" (two? three??) of someone they're investigating is fair game for the government to copy, database, and read without a warrant
it is clear they
are not abiding by the letter nor by the spirit of this:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment 4, U.S Constitution
The Constitution is the social contract, the agreement we make with each other to have a government at all. A government that violates that agreement is illegitimate.
I understand Director Comey's fear that data vital to a case, possibly even a terrorist's plans, might be locked away encrypted somewhere such that his agency can't reach it without the investigation subject's cooperation. Too bad. That's tough. That's one of the prices we pay for living in a free society.
The society that claims a 100% guarantee of safety and security is one in which the government itself is a 100%-guaranteed danger to everyone. Even President Obama understands this better than Director Comey apparently does, though that's clearly in word, and not in deed. Besides, Director Comey's stated good intentions are not the basis for our liberty. The Constitution, laws, principles, and people—such as journalists and advocates—who actualize accountability are.
Free people must have ways to escape government intrusion. There have to exist avenues for revolution even, always. Otherwise, with official impunity, enter tyranny.
Related issues and articles
About accepting some risk to safety in a free society, the line of reasoning is somewhat akin to the fact that many lawbreakers escape punishment due to the "beyond a reasonable doubt" standard for convicting a person of a crime. Director Comey, do you actually make a practice of the spirit of this perspective?
Better that ten guilty persons escape than that one innocent suffer.
- William Blackstone, mid-1700s
Some would take that far further:
[I]t is better [one hundred] guilty Persons should escape than that one innocent Person should suffer.
- Benjamin Franklin, 1785
Far from it, as the FBI's terrorism entrapment case-happy practices indicate. As the experiences of African-Americans and Latinos, of peace and environmental activists, of investigative journalists, of Muslims in America indicate. Not incidentally, banksters and
torturers have enjoyed the benefit of the FBI's principled innocent-until-proven-guilty spirit, and then some.
Regarding effective crime-solving and terrorism prevention, there is also the pragmatic matter that live, human tips, combined with law enforcement agents' own knowledge and expertise—not any robotic dragnet—are the best means to seek justice against lawbreakers and to gain the public trust. This argument is similar to pointing out that torture is a counterproductive means of interrogation, when what should be the overriding point in that regard is that torture is immoral and not to be countenanced in a civilized society.
Returning to the matter of government access to people's information, consider the FBI's desired public image versus the reality:
Comey acknowledged that the Snowden disclosures caused “justifiable surprise” among the public about the breadth of government surveillance, but hoped to mitigate it through greater transparency and advocacy.
Yet the FBI keeps significant aspects of its surveillance reach hidden even from government oversight bodies. Intelligence officials said in a June letter to a US senator that the FBI does not tally how often it searches through NSA’s vast hoards of international communications, without warrants, for Americans’ identifying information.
FBI director attacks tech companies for embracing new modes of encryption
James Comey says data encryption could deprive police and intelligence companies of potentially live-saving information
Spencer Ackerman in Washington, The Guardian, 16 October 2014
And the similar attitude that goes with evading and violating the rules of evidence:
"However, the failure of law enforcement officials to disclose to courts the actual source of their information and to pretend that it came from a 'confidential source,' is deceptive and possibly fraudulent," [Russell Covey, a law professor at Georgia State University,] told Ars. "Affirmatively misleading the courts about the source of evidence in sworn warrant applications would clearly constitute a constitutional violation."
[... Former south Texas magistrate judge Brian Owsley, now a law professor at Texas Tech, said,] "Theoretically, the judge could hold the requesting officer in contempt or could ask the Justice Department to investigate, which could in theory lead to termination or criminal prosecution. That will never happen—not with this administration. After all, if the [Director of National Intelligence] can lie to Congress without consequences, surely a law enforcement official can deceive a court without worrying about consequences."
Legal experts: Cops lying about cell tracking “is a stupid thing to do”
Deception in legal filings could lead to bad consequences for police, attorneys.
by Cyrus Farivar, Ars Technica, Jun 20, 2014
And then there's even more systematic straight-up falsification and dishonesty:
A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.
Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin—not only from defense lawyers but also sometimes from prosecutors and judges.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.
[...] "Parallel construction is a law enforcement technique we use every day," one official said. "It's decades old, a bedrock concept."
[...] "It's just like laundering money - you work it backwards to make it clean," said Finn Selander, a DEA agent from 1991 to 2008 and now a member of a group called Law Enforcement Against Prohibition, which advocates legalizing and regulating narcotics.
Exclusive: U.S. directs agents to cover up program used to investigate Americans
BY JOHN SHIFFMAN AND KRISTINA COOKE, WASHINGTON, Reuters, Aug 5, 2013
Coda
"It was an amazing tool," said one recently retired federal agent. "Our big fear was that it wouldn't stay secret."
The secret of the government breaking the law is not the kind of secret that a free and just society can withstand. And given that neither Congress nor anyone else has comprehensively held federal agencies to account for their past and present lawbreaking, until they and we do, we should not be granting the administration even more future official powers.