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Pittsburgh Post-Gazette Op-Ed: Facebook encryption could endanger victims

Courtesy of
Scott Brady, U.S. Attorney for the Western District of Pennsylvania

In 2015, in a small Western Pennsylvania steel town, a 7-year-old boy was repeatedly sexually abused by a 22-year-old man. This man recorded the abuse and then shared the videos and photos online. As part of a federal investigation into other sexually explicit images of children, a federal judge approved a search warrant for the man’s emails. This lawful search led investigators to thousands of images of child pornography, including the recordings of the man abusing the 7-year-old boy. The man was arrested, charged and recently sentenced to 30 years in federal prison. Law enforcement access to the content of the emails made that outcome possible.

That outcome is consistent with our Constitution. The framers created a system of ordered liberty that balances individual rights against broader communal interests, including public safety. Neither side is absolute. Instead, the Bill of Rights and later Supreme Court decisions created a framework for judges to balance these interests.

The Constitution’s Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Fourth Amendment jurisprudence has established over 230 years that a search is permitted when a judge issues a search warrant based on probable cause to believe evidence of a crime will be found in a home, office, vehicle, email account, cellphone or storage device. This judicial review protects citizens’ privacy while ensuring that law enforcement has the tools to investigate criminal activity that threatens public safety, including child exploitation, terrorism and drug trafficking.

Now, technology companies want to unilaterally change this constitutional balance. Under the banner of “privacy,” they are creating a system in which all personal communication — including criminal activity — is encrypted and, therefore, is inaccessible to law enforcement. If a judge orders any of those encrypted messages turned over, the position of the technology companies is to tell the judge, in effect, “Too bad!” and to ignore the order. Facebook, for example, plans to expand such “warrant-proof encryption” to communications over its messenger service.

Attorney General William Barr has explained the problems with such expansion generally and with regard to Facebook specifically. In the Dec. 23 editorial “Protecting Privacy,” however, the Pittsburgh Post-Gazette editorial board advocated for Facebook’s proposed expansion. That would be folly for several reasons.

First, Facebook is wrong on principle. The Constitution empowers judges to decide when privacy outweighs the public interests in protecting victims and pursuing justice. Facebook, instead, wants to usurp that decision from neutral judges and turn privacy into an absolute right that can never be outweighed by society’s interests. This would close the front door to judge-approved search warrants.

Second, Facebook’s encryption will encourage more crime. Warrant-proof encryption creates “warrant-free zones” where criminals can shield their criminal activity from investigators. This is a gift to child abusers, terrorists and drug traffickers, who will brazenly harm our communities without fear of prosecution. We already see the impact of warrant-proof encryption on significant drug trafficking and violent crime investigations in Western Pennsylvania, including Mexican cartels flooding our streets with opioids and avoiding detection by communicating through warrant-proof encryption.

Third, Facebook’s encryption will endanger real victims across the country, including in Western Pennsylvania. If encryption had blocked lawful access to the 22-year-old man’s communications, he might still be sexually abusing that 7-year-old boy. In a recent wiretap investigation, members of the violent “Hustlas Don’t Sleep” gang were planning a murder. Thanks to our lawful intercepts, law enforcement prevented that murder. Had the gang members communicated through warrant-proof encryption, this person would be dead today. Make no mistake, warrant-proof encryption means more victims will be harmed more extensively.

In contrast, the Post-Gazette identifies only theoretical harms from allowing lawful access to electronic communications. The Post-Gazette worries that a “repressive regime” could “access those messaging services to identify and arrest dissenters, thereby quashing protests” or that hackers could obtain “private information of prominent people for a variety of nefarious purposes.” Such unlawful access is a problem and my office has indicted international hackers for it. But such backdoor unlawful access — achieved without the service provider’s knowledge — has nothing to do with the lawful front door access that law enforcement is seeking.

Indeed, just as banks encrypt financial transactions to protect against hacking but still maintain records that law enforcement can access with lawful search warrants, similar solutions should be found for encrypted electronic communications. Mr. Barr and FBI Director Christopher Wray have offered to work with Facebook and others to develop such technology. Each technology company would then own the keys to provide lawful access to its own system, with appropriate constitutional safeguards. That would be better for both society and the technology companies.

Facebook wants to turn a blind eye to all types of criminal conduct hosted on its platforms under a flawed vision of privacy, which it alone defines. Instead, we believe the framers had it right. We seek the ability to investigate those who would do us harm, with judges (not Facebook) enforcing the relevant constitutional protections. Our children and communities deserve nothing less.

Updated January 20, 2021