Liberty and Safety are not at two ends of a zero-sum sliding scale, wherein one must be sacrificed in discrete and equal units for the other. We can and should have a good measure of both, and it is government's charge to provide for the latter, while protecting (or, depending on your view, not infringing upon) the former. To say nothing of the fact that our very existence has been an exercise in the sacrifice of "liberty" for an orderly civil society governed by the rule of law, except in the fantasies of internet tech-libertarians.
And what a worthless survey: "warrantless surveillance" of what? Of who? Foreign intelligence targets do not require and never have required a warrant.
Gone are the days where the US targeted foreign communications on distant shores, or cracked codes used only by our enemies. No one would have questioned the legitimacy of the US and its allies breaking the German or Japanese codes or exploiting enemy communications equipment during WWII. The difference today is that US adversaries -- from terrorists to nation-states -- use many of the same systems, services, networks, operating systems, devices, software, hardware, cloud services, encryption standards, and so on, as Americans and much of the rest of the world. They use iPhones, Windows, Dell servers, Android tablets, Cisco routers, Netgear wireless access points, Twitter, Facebook, WhatsApp, Gmail, and so on.
The distinction is no longer the technology or the place, but the person(s) using a capability: the target. In a free society based on the rule of law, it is not the capability, but the law, that is paramount.
US adversaries use the very same technologies we use. The fact that Americans or others also use them does not suddenly or magically mean that no element of the US Intelligence Community should ever target them. When a terrorist in foreign country is using Hotmail or an iPhone instead of a walkie-talkie, that cannot mean we pack our bags and go home. That means that, within clear and specific legal authorities and duly authorized missions of the Intelligence Community, we aggressively pursue any and all possible avenues, within the law, that allow us to intercept and exploit the communications of foreign intelligence targets.
If they are using hand couriers, we target them. If they are using walkie-talkies, we target them. If they are using their own custom methods for protecting their communications, we target them. If they are using HF radios, VSATs, satellite phones, or smoke signals, we target them. If they are using Gmail, Facebook, iPhones, Android, SSL, web forums running on Amazon Web Services, etc., we target them -- within clear and specific legal frameworks that govern the way our intelligence agencies operate, including with regard to US Persons.
That doesn't mean it's always perfect; that doesn't mean things are not up for debate; that doesn't mean everyone will agree with every possible legal interpretation; that doesn't mean that some may fundamentally disagree with the US approach to, e.g., counterterrorism. But the intelligence agencies do not make the rules, and while we may inform issues, we do not define national policy or priorities.
And on backdoors, we don't need "backdoors".
What we do need is this:
A clear acknowledgment that what increasingly exists essentially amounts to a virtual fortress impenetrable by the legal mechanisms of free society, that many of those systems are developed and employed by US companies, and that US adversaries use those systems -- sometimes specifically and deliberately because they are in the US -- against the US and our allies, and for a discussion to start from that point.
The US has a clear and compelling interest in strong encryption, and especially in protecting US encryption systems used by our government, our citizens, and people around the world, from defeat. But the assumption that the only alternatives are either universal strong encryption, or wholesale and deliberate weakening of encryption systems and/or "backdoors", is a false dichotomy.
How is that so?
Encrypted communication has to be decrypted somewhere, in order for it to be utilized by the recipent. That fact can be exploited in various ways. It is done now. It's done by governments and cyber criminals and glorified script kiddies. US vendors could, in theory, be at least a partial aid in that process on a device-by-device basis, within clear and specific legal authorities, without doing anything like key escrow, wholesale weakening of encryption, or similar with regard to software or devices themselves.
When Admiral Michael Rogers, Director of the National Security Agency and Commander, US Cyber Command, says:
"My position is -- hey look, I think that we're lying that this isn't technically feasible. Now, it needs to be done within a framework. I'm the first to acknowledge that. You don't want the FBI and you don't want the NSA unilaterally deciding, so, what are we going to access and what are we not going to access? That shouldn't be for us. I just believe that this is achievable. We'll have to work our way through it. And I'm the first to acknowledge there are international implications. I think we can work our way through this." ...some believe that is code for, "We need backdoors." No. He means exactly what he says.
When US adversaries use systems and services physically located in the US, designed and operated by US companies, there are many things -- compatible with our law and with the Constitution -- that could be discussed, depending on the precise system, service, software, or device. Pretending that there is absolutely nothing that can be done, and it's either unbreakable, universal encryption for all, or nothing, is a false choice.
To pretend that it's some kind of "people's victory" when a technical system renders itself effectively impenetrable to the legitimate legal, judicial, and intelligence processes of democratic governments operating under the rule of law in free civil society is curious indeed.
Some ask why terrorists wouldn't just switch to something else.
That's a really easy answer -- terrorists use these simple platforms for the same reason normal people do: because they're easy to use. Obviously, a lot of our techniques and capabilities have been laid bare, but people use things like WhatsApp, iMessage, and Telegram because they're easy. It's the same reason that ordinary people -- and terrorists -- don't use Ello instead of Facebook, or ProtonMail instead of Gmail. And when people switch to more complicated, non-turnkey encryption solutions -- no matter how "simple" the more tech-savvy may think them -- they make mistakes that can render their communications security measures vulnerable to defeat.
Vendors and cloud providers may not always be able to provide assistance; but sometimes they can, given a particular target (device, platform, etc.), and they can do so in a way that comports with the rule of law in free society, doesn't require creating backdoors in encryption, doesn't require "weakening" their products, and doesn't violate the legal and Constitutional rights of Americans.
And of course, it would be nice if we were able to leverage certain capabilities against legitimate foreign intelligence targets without our targets and the entire world knowing exactly what we are doing, how, when, and why, so our enemies know exactly how to avoid it.
Secrecy is required for the successful conduct of intelligence operations, even in free societies.
"The necessity of procuring good Intelligence is apparent and need not be further urged -- all that remains for me to add, is, that you keep the whole matter as secret as possible. For upon Secrecy, Success depends in most Enterprises of the kind, and for want of it, they are generally defeated, however well planned and promising a favourable issue." â" George Washington, our nation's first spymaster, in a letter to Colonel Elias Dayton, 26 July 1777
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