Want to save encryption? End the war on drugs
Stop creating unnecessary legal confrontations between tech and law enforcement
In his recent Congressional testimony, FBI Director James Comey framed the San Bernardino iPhone case as a question of balancing privacy against public safety. Many technologists have disputed whether “privacy” is the right word for the first half of that balance. If the integrity of iPhone encryption is compromised, that will harm not just the privacy of a dead man who is no longer entitled to any under the law, but the information security of billions of people all over the world.
But it’s also worth asking whether “public safety” is the right word to describe the second half of the balance. Certainly, terrorism of the kind that we sadly observed in San Bernardino in December is, when it occurs, a danger to the public. It is also blessedly infrequent. In the fourteen-and-a-half years since the September 11 attacks, the New America Foundation reckons that 45 people have been killed in 9 jihadist terrorist attacks on US soil, of which the San Bernardino attack was the most deadly. It also counts 48 deaths due to 18 right-wing terrorist attacks, such as last year’s shootings at Planned Parenthood in Colorado and Emmanuel AME Church in Charleston.
From the FBI’s perspective, the San Bernardino incident makes the perfect test case for its battle in the court of public opinion. The public rightly has no sympathy for Mr. Farook and Ms. Malik, and is therefore predisposed to support the investigation. But the San Bernardino case is not representative of law enforcement activities more generally. Law enforcement agencies do not spend most of their time countering terrorism. They spend the largest share of their time and resources prosecuting the war on drugs.
According to the FBI’s Crime in the United States report, there were over 1.5 million arrests in 2014 for drug-related offenses, more than three times as many as for all of what the FBI classifies as “violent crimes” put together. 83.1 percent of those arrests were for mere possession, and a staggering 39.7 percent of the total, or almost 620,000 arrests, were for marijuana possession.
We can also look to wiretap data to get a flavor for how law enforcement spends its investigative resources. Of the 1279 wiretaps authorized by federal courts that ended in 2014, 1168 (or 91.3 percent) were for investigations of narcotics activity. For state courts, 2002 of 2275 (88.0 percent) were for narcotics. A substantial portion of the “non-narcotics” wiretaps may also be drug-related — for example, some intercepts were listed as being for money laundering or conspiracy, which may ultimately be tied to drugs.
It’s clear that when law enforcement officers complain of “going dark,” or being unable to access communications due to encryption, a substantial portion of their concern is driven by drug investigations. New York County District Attorney Cyrus Vance testified that his office was currently unable to access 205 iPhones due to encryption. Mr. Vance’s office has not released statistics about the activities for which those phones were seized, but it seems probable that many more of them are implicated in drug crime than terrorism.
Whatever the merits of the war on drugs, we should be careful about conflating it with public safety. Drug criminalization is social policy. Insofar as drug use exacts a toll on society, the cost is paid primarily by the users themselves, not by uninvolved members of the public who need law enforcement to protect them.
And to the extent that drugs do lead to violence, the cause is usually criminalization, not drug use itself. Criminalization has empowered cartels and organized crime, created conflict between drug gangs, and caused low-level crime as addicts steal and engage in prostitution in order to fund their habits at the inflated prices introduced by scarcity.
In addition, criminalization leads to violent reactions by law enforcement, sometimes with devastating effects on public safety. Consider the heartbreaking case of Bounkham Phonesavanh, the 19-month-old toddler in Georgia who was injured by a stun grenade tossed into his crib by a SWAT team conducting a drug raid (no drugs were found). The Cato Institute has documented dozens of such botched drug raids over three decades. More generally, it is impossible to disentangle the war on drugs from an alarming trend in police militarization, as Radley Balko has documented. Incidentally but disturbingly, this militarization has led to 2727 incidents of police shooting family pets.
Drugs cause real social problems. But when law enforcement agencies investigate drug crimes, they are enforcing social policy, not protecting public safety. To a non-trivial extent, the drug war even endangers public safety in the name of social policy.
What does the prevalence of drug enforcement actions mean for device encryption? It reveals the “going dark” problem not primarily as an increase in privacy at the cost of public safety as Director Comey insists. Rather, ubiquitous device encryption means increased information security on the one hand, and on the other a decreased capacity for law enforcement agencies to engage in a diverse mix of activities, from enforcing the drug war’s social policies to protecting Americans from genuine threats to public safety.
If we extrapolate from wiretap statistics and assume that around 90 percent of law enforcement agencies’ investigative resources are centered on narcotics, then it stands to reason that we could solve 90 percent of the “going dark” problem simply by decriminalizing drugs. A 90 percent solution is not a full solution, but let’s be honest—“90 percent solved” is better than the political process usually allows.
Moreover, with those drug-related investigative resources freed up, law enforcement agencies would be able to focus more completely on genuine threats to public safety. There may be less need to undermine information security on phones with more policework directed against the actual threats to public safety in the first place.
Perhaps most strategically from Apple’s and other technology companies’ perspectives, the war on drugs creates a lot of unnecessary legal confrontations between the industry and law enforcement agencies. If Silicon Valley would forcefully lend its considerable political clout to ending the drug war, it could substantially reduce (though not eliminate) the demand for cooperation with government agencies.
But even if tech companies won’t speak out against the drug war as they should, we should recognize the FBI’s claim to be concerned for public safety for the half-truth that it is. Teenagers taking hits from a bong in their basement do not endanger the public.
Law enforcement officers should not pretend that the San Bernardino case is representative or scare the public with the suggestion that there will be 205 terrorist attacks in Manhattan if they can’t crack Apple’s security. Rather, they should be candid about the vast chasm between their activities and how those activities have so far been represented to Congress and the public. Only then can we properly weigh the costs and benefits of secure iPhones.
