Wrongheaded Policy for Innovation, Privacy and Cybersecurity

Consumers want their personal digital data to remain private. App developers and our business partners are working hard to make sure personal data remains private. Networking companies, ISPs, retailers, credit card companies, device manufacturers and digital services are investing tens of millions of dollars to upgrade data security and use encryption to stop cyberhackers and identity thieves.  Inexplicably, the FBI is trying to reverse this trend.

For several years the FBI has promoted encryption “to protect the user’s personal data.” But more recently and quite vocally, the FBI has urged Congress to prohibit companies from securely encrypting communications data, and to guarantee the FBI a back door to every digital device.  And though it has not yet been said, we are confident that the FBI will extend its call for back doors to cover every app, digital service, networking device, connected car, thermostat and even your Fitbit. 

The current debate is just beginning, but its origins were in the early 1990s. Digital innovators were deploying the first wave of digital networks and privacy-focused innovators were deploying first generation encryption technologies. Spurred by urgent cries from the FBI, Congress passed the Communications Assistance for Law Enforcement Act – known as CALEA – that requires traditional telecommunications companies to build law enforcement back doors into broadband and Voice-Over-IP networks and equipment. Somehow this law withstood judicial review, notwithstanding our traditional American rights to privacy and the requirement that police have court-approved warrants prior to tapping phone lines or searching our homes.

Much has changed since CALEA became law in 1994. Devices have become smarter and more powerful. Consumers are transitioning from voice calling to messaging, voice messaging, emailing and in-app communication. The FBI is feeling left out and left behind, so it is asking Congress to help it play technological catch-up by requiring law enforcement back doors into every device, every network and soon into every app.

Consumers and businesses are also smarter today than they were in 1994.  People justifiably feel threatened by hackers and data thieves who steal for fun and profit.  Consumers and businesses have heard privacy advocates and government officials evangelizing data protection vigilance, and they are demanding more – including encryption – from technology providers, banks and retailers.  Moreover, after 20 years of empty promises the world’s citizens and are also much more skeptical of U.S. law enforcement promises that we first heard 20 years ago – that unfettered access to digital networks would be utilized judiciously and only for qualified law enforcement needs. 

Recently the White House Review Group on Intelligence and Communications Technologies recommended that the U.S. Government promote national security by “fully supporting” commercial encryption. President Obama urged private industry to protect U.S. citizens’ privacy and civil liberties, saying “[w]hen consumers share their personal information with companies, they deserve to know that it’s going to be protected.”  And later the President forcefully noted that “there’s no scenario in which we don’t want really strong encryption.”

Industry has responded appropriately to government and consumer demand.  New credit cards are being issued, encrypted Blackphones are for sale, and encryption protections are being embedded in devices and services offered by large companies and new startups. Now the FBI is pushing back, causing uncertainty, consumer confusion and inhibiting innovation in encryption and other data protection technologies. If the U.S. Government demands that digital products and apps have privacy-breaching back-doors, then other governments will demand their own back doors or punish all the apps that comply with the U.S. back door mandate.

“Protect and encrypt (but not too well)” is not a slogan that marketers will celebrate or consumers will rally behind – but it will be heartily endorsed by cyberthieves and hackers. The American people, America’s businesses and America’s innovators deserve better.  

Originally posted on The Hill.

Jon Potter

President and Co-Founder