Anonymity, Encryption, and Propaganda

-- By EthanThomas - 03 Mar 2017

Note: This is an incomplete draft

Introduction

This paper briefly discusses efforts to frame anonymity and encryption -- vital tools to free expression, uninhibited communication, and autonomous life in a world of snooping and surveillance -- as dangerous and unnecessary instruments of criminality. It examines the legitimate need for modern tools that preserve anonymous communication and protected data, the attempts to undermine the usefulness of these tools, and the harm of this campaign against privacy-promoting technology.

I. The Growing Need for Anonymity and Privacy

Communications can be protected in two important ways: namely, the author or the contents (or both) can be hidden from onlookers. Technology, private corporate interests, and government surveillance make the need for both forms of protection higher now than it ever has been.

A. The Demand for Protected Communication Is Legitimate

Discuss here the importance of privacy, its relationship to autonomy, and the legal and historical protections thereof

B. The Need for Protected Communication Is Stronger Than Ever

Discuss here encroachments into private communications by the government as well as private actors

II. Hidden in Plain Sight: The Government's Vilification of Encryption

The government has taken a strong stance against secure means of communication, and encryption in particular, by highlighting instances where criminals or terrorists use these tools, perpetuating the "if you have done nothing wrong, you have nothing to hide" narrative,(1) and insisting that privacy is compatible with uninhibited government access to records and communications. These tactics and the overall message against encryption ignore legitimate need for the technology, and they reveal troubling motives to the government's approach to technology, privacy, and free speech.

A. Association with Criminality and Delegitimization

One tactic that has recently gained favor is to associate secure or anonymous communication with terrorism. To be sure, the association of tools the government dislikes with criminal behavior is not a new phenomenon. The current narrative, however, creates a strong tie between criminality and the use of certain technologies that aims to stigmatize their use.

In one report (by a private firm), Tor, VPN services, and several messaging applications are identified as "Tech for Jihad."(2) Tor in particular has gained a reputation as "the web browser for criminals,"(3) merely because it helps to anonymize users. Telegraph, an app which can send encrypted and self-deleting messages, has been identified as "the app of choice for jihadists."(4)

The government has itself played a role in associating privacy-protecting or anonymizing tools with criminality. The standoff between Apple and the FBI over the San Bernardino shooter's iPhone, in which the FBI demanded software from Apple to essentially crack the encryption of any iPhone, brought to the forefront the government's discomfort with encryption.(5) The Manhattan District Attorney's Office argues that "[t]here is an urgent need for federal legislation that would compel software and hardware companies that design or build mobile devices or operating systems to make such devices amenable to appropriate searches."(6).

B. Flaws, Motives, and Dangers of This Campaign

Importantly, this message is not only pushed by the government, but media perpetuates it as well.(7) The treatment of encryption and anonymity is thus largely akin to propaganda.(8) This treatment makes sense: encryption is easy to implement and access (for example, RSA encryption utilizes basic number theory, and a simple program can create extremely difficult-to-break encryption), so the best way to keep people from it is to treat it as if it were dangerous or presumptively criminal. In other words, the goal is to change behavior through misinformation and fear, rather than through direct enforcement. This is at its core self-censorship and self-regulation, gradually imposed on the citizenry.

Not only does anonymity have Constitutional underpinnings in the publishing context,(9) but the ability to speak and communicate anonymously in a world where everything is monitored and recorded is paramount to privacy.(10) Indeed, anonymity is one of three key components of privacy, the other two being secrecy (which encryption and secure communication tools help protect) and autonomy.

While anonymity and secrecy are directly offended by a war on encryption, autonomy is also a victim. As discussed above, the persistent threat of monitoring and censorship severely limits the ability to express, act, and ultimately think on one's own. The notion that people who seek to act autonomously by guaranteeing freedom from these intrusions are dangerous (or even criminal) demonstrates a troubling lack of respect for these principles of autonomy from those in power, but also threatens to suppress expression and uninhibited behavior by making individuals and communities police themselves. If people are told that they have nothing to hide if they have done nothing wrong, and companies adopt this narrative (for their own purposes or by prohibiting customers from using anonymizing tools),(11) then suppression of ideas and identity could become the norm. Simply put, the best way to ensure that behavior can be comprehensively monitored is to normalize snooping (by both the government and private parties) and to stigmatize evasion of such intrusions.

III. Moving Forward and Embracing Technology as a Defender of Autonomy

The views of the government -- and increasingly, the view of corporations and society -- toward encryption, anonymity, and secrecy are contrary to principles of a free society. They stigmatize true expression and a desire to behave unscrutinized. Even if privacy is purely a negative right (that is, the right not to be monitored by the government absent reasonable and legally-compelling justification), the campaign described here violates this right.

[Conclusion]

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Notes

1 : cite an example

2 : See Flashpoint, Tech for Jihad, https://www.flashpoint-intel.com/wp-content/uploads/2016/08/TechForJihad.pdf

3 : See Business Insider, Comcast Denies It Will Cut Off Customers Who Use Tor, The Web Browser For Criminals, http://www.businessinsider.com/comcast-threatens-to-cut-off-tor-users-2014-9

4 : See Washington Post, The ‘app of choice’ for jihadists: ISIS seizes on Internet tool to promote terror, https://www.washingtonpost.com/world/national-security/the-app-of-choice-for-jihadists-isis-seizes-on-internet-tool-to-promote-terror/2016/12/23/a8c348c0-c861-11e6-85b5-76616a33048d_story.html

5 : See, e.g., NPR All Tech Considered, A Year After San Bernardino And Apple-FBI, Where Are We On Encryption?, http://www.npr.org/sections/alltechconsidered/2016/12/03/504130977/a-year-after-san-bernardino-and-apple-fbi-where-are-we-on-encryption

6 : Manhattan District Attorney's Office, Smartphone Encryption and Public Safety, http://manhattanda.org/sites/default/files/Report%20on%20Smartphone%20Encryption%20and%20Public%20Safety:%20An%20Update.pdf

7 : See citations in Part II.A from media outlets.

8 : cite some definition

9 : McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995).

10 : See id. at 342 (""The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry."); see also Talley v. California, 362 U.S. 60, 64-65 ("Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. . . . The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious to the rulers.")

11 : See Business Insider, Comcast Denies It Will Cut Off Customers Who Use Tor, The Web Browser For Criminals, http://www.businessinsider.com/comcast-threatens-to-cut-off-tor-users-2014-9; see also PC World, Google's Schmidt Roasted for Privacy Comments, http://www.pcworld.com/article/184446/googles_schmidt_roasted_for_privacy_comments.html (citing Schmidt's comment that "If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place . . . .")

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