In a blog which focuses on the meaning of “privacy” in the modern world, Privacy International published an excellent summary of key international instruments which address the subject. At the end they announce their conclusion
Privacy is a qualified, fundamental human right.
Note, they do not say privacy is an absolute right. That is borne out in all of the treaties and conventions to which Privacy International refers.
Yet look where we are headed with strong encryption.
We are creating what are, for practical purposes, impregnable or unreachable spaces. These confer impunity on any and all manner of wrongdoing. Paedophiles and persons who wish to exchange child sex abuse material are permanently shielded, as are terrorists and an infinite variety of scam artists.
The rule of law is being undermined
We are looking at a world where warrants and court verdicts lie mute, incapable of fulfillment. The rule of law is thereby being undermined.
Whereas previously a familiar cry one heard, for example in respect of apparently illegal content, was it should not be taken down without the say so of a judge, the same voices now seem content to contemplate a situation where all judges are rendered impotent.
Thus, on top of the long-established challenges associated with the internet: scale, speed, jurisdiction and complexity, we are adding a whole new layer.
Attacking the problem from the wrong end
Obviously, I get that there has been an erosion of public confidence and trust both in political institutions and in online businesses. Moreover I am not against encryption (see my previous blog) but the way it is being rolled out in some areas is disproportionate. The cure is turning out to be worse than the disease.
Limiting the ability of companies themselves to detect and prevent behaviour which contravenes their own terms of services is wrong and makes a mockery of the very idea of having terms of service in the first place.
Making it impossible for law enforcement agencies with proper authority to see the content of a message likewise is simply wrong.
Sending cannabis through the post
If I decide to open up a sideline selling cannabis could I legitimately enlist the Royal Mail to help my business prosper by delivering weed to my customers? Of course not.
There is no reasonable expectation of absolute privacy vis-a-vis the otherwise sacred and untouchable postal service. Postal services all over the world take reasonable and proportionate steps to ensure their systems are not being used to aid and abet crimes. They sniff, they scan, x-ray and goodness knows what else.
Have people stopped using the post?
When it became known that this could happen did the mass of people abandon the postal system, outraged by this actual or potential encroachment of their right to privacy of communications? No. Neither would they desert Facebook Messenger if they knew that, only with proper authority and just cause, a message could be examined by the police or court officials.
But is it unreasonable to expect Facebook Messenger not to use strong encryption if all of its competitors are? That is a completely different question.
We really do need to call a halt and take a breath. Just because technologists have invented something it does not mean its use must become compulsory. Certain genies can be put back in the bottle if there is sufficient political will.
In respect of forms of encryption which preclude the possibility of scrutiny by anyone the political will is growing. It needs an urgent push.