The End Of Roe Will Bring About A Sea Change In The Encryption Debate

from the rights-matter dept

With the Supreme Court poised to rip away a constitutional right that’s been the law of the land for nearly half a century by overturning Roe v. Wade, it’s time for the gloves to come off in the encryption debate. For a quarter of a century, it has been an unspoken prerequisite for “serious” discussion that American laws and law enforcement must be given a default presumption of legitimacy, respect, and deference. That was always bullshit, the end of Roe confirms it, and I’m not playing that game anymore.

Weirdly, there are a lot of similarities between encryption and abortion. Encryption is a standard cybersecurity measure, just like abortion is a standard medical procedure. Encryption is just one component of a comprehensive data privacy and security program, just like abortion is just one component of reproductive health care. They both save lives. They both support human dignity. They’re both deeply bound up with the right to autonomy privacy, no matter what a hard-right Supreme Court says. (Ironically, the way things are going, the Supreme Court’s position will soon be that we have more privacy rights in our phones than in our own bodies.) And finally, both encryption and abortion keep being framed as something “controversial” rather than something that you and I have every damn right to – something that should be ubiquitously available without encumbrance. 

It would be nice if both of these things were settled questions, but as we’ve seen in both cases, the opponents of each will never let them be. The opponents of bodily autonomy are about to score a victory they’ve been working towards for decades. The immediate result will be total bans and criminalization of abortion in large swaths of the United States. We absolutely cannot afford for the opponents of encryption to prevail as well, whether in the U.S., the EU, its member states, or anywhere else.

The only reason there’s still any “debate” over encryption is because law enforcement refuses to let it drop. For over a quarter of a century, they’ve constantly insisted on the primacy of their interests. They demand to be centered in every discussion about encryption. They frame encryption as a danger to public safety and position themselves as having a monopoly on protecting public safety. They’ve insisted that all other considerations – cybersecurity, privacy, free expression, personal safety – must be made subordinate to their priorities. They expect everyone else to make trade-offs in the name of their interests but refuse to make trade-offs themselves. Nothing trumps the investigation of crime.

Why should law enforcement’s interests outweigh everything else? Because they’re “the good guys.” In debates about whether law enforcement should get “exceptional access” (i.e., a backdoor) to our encrypted communications and files, we pretend that American (and other Western democracies’) law enforcement are “the good guys,” positioned in contrast to “the bad guys”: criminals, hackers, foreign adversaries. When encryption advocates talk about how encryption is vital for protecting people from the threat posed by abusive, oppressive governments, we engage in the polite fiction that we’re talking about “that other country, over there.” It’s China, or Russia, or Ethiopia, not the U.S. If we talk about the threats posed by U.S.-based law enforcement at all, it’s the “a few bad apples” framing: we hypothesize about the occasional rogue cop who’d abuse an encryption backdoor in order to steal money or stalk his ex-wife. 

We don’t confront the truth: that law enforcement in the U.S. is rife with institutional rot. Law enforcement does not have a monopoly on protecting public safety. In fact, they’re often its biggest threat. When encryption advocates play along with framing law enforcement as “the good guys,” we’re agreeing to avert our eyes from the fact that one-third of all Americans killed by strangers are killed by police, the fact that police kill three Americans a day, and the staggering rates of domestic violence by cops. When actual horrific crimes get reported to them – the very crimes they say they need encryption backdoors to investigate – they turn a blind eye and slander the victims. Law enforcement is a scourge on Americans’ personal safety. The same is true of our privacy as well: as a brand-new report from Georgetown underscores, law enforcement agencies don’t hesitate to flout the law with impunity in the pursuit of their perfect surveillance state. 

U.S. law enforcement officers and agencies have shown us with their own actions that they don’t deserve any deference whatsoever in discussions about encryption policy. They aren’t entitled to any presumption of legitimacy. They are just another one of the threats that encryption protects people from. With the demise of Roe, we can no longer ignore that the same is also true of American laws. 

Of course, this has always been the case. “Crimes” are whatever a group of lawmakers at some point in time decide they are, and “criminals” are whoever law enforcement selectively decides to enforce those laws against: Black and brown people, undocumented immigrants, homeless people, sex workers, parents of trans kids, drug users. Now that we’re rolling back the clock on social progress by half a century, “criminals” once again will include people who have abortions (which, don’t you ever forget, does not just mean cisgender women) and those who provide them. Already, some deeply conservative states are plotting for using contraception to make you a criminal again too. People in consensual same-sex relationships or interracial marriages may be next. All of these “crimes” are what should come to your mind whenever you hear somebody tout “fighting crime” as a reason to outlaw strong encryption. 

If you’re an encryption advocate in the United States, it’s time to stop pretending that encryption’s protection against oppressive governments is only about Uighurs in Xinjiang or gay people in Uganda. Americans also need strong encryption to protect ourselves from our own domestic governments and their abominable laws. The impending end of Roe has laid that bare. The threat is coming from inside the house. “China” was really a euphemism for “Alabama” this whole time. Encryption advocates in the U.S. just usually aren’t willing to say so. 

Why not? Because we’ve internalized that unless we treat American laws (and the people who enforce them) as unimpeachably legitimate and supreme, we won’t be treated as “serious.” We’ll be derided as “zealots” and “absolutists” who aren’t willing to have a “mature conversation” about “finding a balance” and “working together” to find a “middle-ground solution” on encryption. Our views and demands will be dismissed out of hand. We won’t get invited anymore to events put on by universities and foundations. We won’t get to talk in endless circles while sitting in fancy conference rooms far away from the jailhouses where Purvi Patel and Lizelle Herrera were held.  

The loss of Roe will unavoidably usher in a new phase of the encryption debate in the U.S., because Roe has been the law of the land throughout the entire time that strong encryption has been generally available. Roe was decided in 1973, and the landmark Diffie/Hellman paper “New Directions in Cryptography” didn’t come out until 1976. In the decades since, strong encryption went from a niche concern of the military and banks to being in widespread use by average consumers – while, simultaneously, the constitutional right to abortion was slowly and systematically chipped away. Nevertheless, Roe still stood. In all the years since 1976, encryption policy discussions about “balancing” privacy rights and criminal enforcement have never had to seriously grapple with what it means for abortion to be a crime rather than a right. That’s about to change.

Encryption advocates: It’s time to stop playing along with U.S. law enforcement’s poisonous expectation to exempt them from the threat model. The next time you’re at yet another fruitless roundtable event to “debate” encryption and some guy from the FBI complains that law enforcement must always be the star of the show, ask him to defend his position now that abortion will be against the law across much of the country. If he whines that that’s states’ laws, not federal, ask him what the FBI is going to do once a tide of investigators from those states start asking the FBI for help unlocking the phones of people being prosecuted for seeking, having, or performing an abortion. 

Tech companies: Do you want to help put your users behind bars by handing over the data you hold about them in response to legal demands by law enforcement? Do you not really care if they go to prison, but do care about the bad PR you’ll get if the public finds out about it? Then start planning now for what you’re going to do when – not if – those demands start coming in. Data minimization and end-to-end-encryption are more important than ever. And start worrying about internal access controls and insider threats, too: don’t assume that none of your employees would ever dream of quietly digging through users’ data looking for people they could dox to the police in anti-abortion jurisdictions. Protecting your users is already so hard, and it’s going to get a lot harder. Update your threat models.

Lawmakers: You can no longer be both pro-choice and anti-encryption. The treasure troves of Americans’ digital data are about to be weaponized against us by law enforcement to imprison people for having abortions, stillbirths, and miscarriages. If you believe that Americans are entitled to bodily autonomy and decisional privacy, if you believe that abortion is a right and not a crime, then I don’t want to hear you advocate ever again for giving law enforcement the ability to read everyone’s communications and unlock anyone’s phone. Whether or not you manage to codify Roe or to crack down on data brokers that sell information about abortion clinic visitors, you need to stop talking out of both sides of your mouth by claiming you care about privacy and abortion rights while also voting for bills like the EARN IT Act that would weaken encryption. The midterms are coming, and we are watching.

As I wrote recently for Brookings, encryption protects our privacy where the law falls short. Once Roe is overturned, the law will fall short for tens of millions of people. We no longer have the luxury of indulging in American exceptionalism. The enforcement of American laws isn’t a justification for weakening encryption. It’s an urgent argument in favor of strengthening it. 

Riana Pfefferkorn is a Research Scholar at the Stanford Internet Observatory.

This post originally published to Stanford’s Cyberlaw blog.

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Comments on “The End Of Roe Will Bring About A Sea Change In The Encryption Debate”

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18 Comments

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Anonymous Coward says:

Abortion is not a standard medical procedure. Just look at an aborted baby and then try to say that. Don’t respond until you have. And the vast majority are done by healthy women on healthy babies because they don’t want to be inconvenienced or accept responsibility for the choices they made or they were forced into it by their families or SO’s.

And medically necessary abortions are far less common than they’re frequently made out to be. Abortion doctors also provide no support to pregnant women (they just do the procedure and that’s it) while pregnancy centers offer everything potential mothers need and help them throughout the pregnancy.

R.H. (profile) says:

Re:

I’m a man. If I have an unwanted parasite leeching off of my body I’d have the right to have it removed by a medical professional immediately. Why should this change if I’m female or if the parasite is a member of the genus homo?

I’m all for the mammalian parasitism that we call human reproduction if the host is a willing participant. If not, then it’s best for everyone involved for the parasite to be removed.

Anonymous Coward says:

Re: Re:

If I have an unwanted parasite leeching off of my body I’d have the right to have it removed by a medical professional immediately.

It’s not at all clear that you would. A doctor would do it, because it makes medical sense and there’s no law against it. But if there were such a law, would a court really say it violates your rights?

Roe was a weird case all around, with SCOTUS using the 14th Amendment (due process) and effectively rewriting a law rather than simply invalidating it.

The 10th Amendment (and 9th) could be federally applicable: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But that might not allow them to strike down a state law. The 4th Amendment against unwarranted search, though, seems like it should cover forcing medical professionals to turn against patients. Unfortunately, courts often twist laws in very counterintuitive ways, and not always in favor of the public as the 10th Amendment requires.

Stephen T. Stone (profile) says:

Re:

Do those pregnancy centers offer to perform a live-saving abortion if the life of the pregnant person is threatened by said pregnancy? Do those pregnancy centers offer therapy and a safe place for underage girls if they were made pregnant via rape or incest? Do those pregnancy centers offer anything but religious (read: conservative Christian) teachings disguised as medical advice?

Rocky says:

Re:

Abortion is not a standard medical procedure. Just look at an aborted baby and then try to say that.

Seems you are confused, I didn’t expect anything else. Every medical procedure that is done routinely is a standard procedure. You are of course free to look at any biological left-overs from a standard medical procedure and claim that said procedure isn’t standard.

Abortion doctors also provide no support to pregnant women (they just do the procedure and that’s it) while pregnancy centers offer everything potential mothers need and help them throughout the pregnancy.

And what about those women who where raped? Who helps them when they have been forced to birth a rape-child? Who pays for their medical bills? Who pays for the psychological support? And how is an unwanted child affected mentally while growing up? Become a criminal? Murder? Crack-head? Serial rapist with mommy-issues?

Your views are in the minority but you are hellbent on forcing your views onto others. The majority isn’t forcing you to do abortions but you want the reverse, force the majority to do your bidding. You are a fucking Karen.

OGquaker says:

your turn in the barrel

Those 39% of American female voters in 2016 that gave Trump the chance to stack the Federal courts & swing SCOTUS with religious anti-abortionist are screwed, just like the rest of US that have lived with a gun in their face since birth.

https://www.pewresearch.org/politics/2018/08/09/an-examination-of-the-2016-electorate-based-on-validated-voters/2-12-2/

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OGquaker says:

THIS AC has a knowing God on his side

My Daughter moved to Boise, Idaho a few months ago, her hospital miscarriage abortion would have been illegal with Governor Little’s S1385 bill signed into law.
Turn off your Call Of Duty and look at war, with the boots slowly filling with blood, bones, muscle and organs exposed as thousands of participants loose body heat and cry out for water. When SCOTUS decides all war is illegal, that is when we will listen to your drivel.
“The challenge is that the treatment for an abortion and the treatment for a miscarriage are exactly the same,” said Dr. Sarah Prager, a professor of obstetrics and gynecology at the University of Washington in Seattle and an expert in early pregnancy loss. Miscarriages occur in roughly 1 out of 10 pregnancies.

Dan A says:

Well Argued

I read the first couple sentences of this article and thought that it was hyperbolic and stretching to connect the right’s latest outrage to the ongoing war against encryption. While I’m already a convert on both subjects I hate the hyperbole and doom-casting so common to news so I went in expecting to be typing a response denouncing the article.

That said, I was convinced by the writing that there is a sound and reasonable connecting between abortion and encryption rights and that the threat against one does indeed exacerbate the threat against the other. It is rare for me to find an article that actually compellingly argues it’s point and can change my mind from the first sentences to the end. Bravo.

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Lostinlodos (profile) says:

Facts vs concerns

One thing to keep in mind is this doesn’t ban abortion in and of itself. It sends it back to the state level to be hashed out there.
It allows the states to make laws allowing or banning.

Here’s my thought.
The immediate concern for proC is states making laws that prohibit.
In reality the states most likely to have proC populations of any large size are already controlled mostly or entirely by Democrats. The vast majority of the country’s population lives in larges cities or surrounding lands. Where no matter how big the state is the cities always outvote the rest of the population. And the majority of ProC live in those states.
Outside of those states there is little concern in the majority populace.
Aside from Texas, maybe Arizona, abortion law is an non-issue.
The large cities in balanced and conservative states tend to be next door to liberal states.

I am not trying to pretend that someone in Nebraska or Wyoming who would not one doesn’t exist. I’m sure they do. But take away the outliers in fractions of percents and in all likelihood this isn’t going to change all that much.

As far as Texas goes, anything that limits interstate commerce is a violation of federal statute. The Texas abortion law on take. Or will be torn apart if not killed completely eventually.

Otherwise The fact is you simply go to a state where the procedure is legal.

Don’t misinterpret my thoughts either. I’m both prolife and prochoice.
I’d prefer that the government made medical care across the board free. Making child birth free. Assuming adoption, it costs much more to bring a child to life (it’s not life till you cut the cord) than have an abortion. Without the costs of raising!
And that’s one of the driving factors for lower income potential-to-be parents. When even completion and adoption cost so, so much more…bankrupting the self vs abortion is not that surprising of a decision.

Lisboeta says:

Re: Facts vs Concerns

“you simply go to a state where the procedure is legal”

Are you really that dim? Not everyone can afford either the time off, or the money, to do so.

Imagine you’re a woman, living in a state where abortion is outright banned, and scans/tests have revealed that the foetus is not viable. The pregnancy should be terminated forthwith, to avoid condemning the mother to the same fate as Savita Halappanavar. (Savita’s needless death, and the subsequent outrage, forced Ireland to change its blanket ban on abortion.)

The US is unlikely ever to make medical care free for all. Hypotheticals have no place in this discussion.

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Lostinlodos (profile) says:

Re: Re:

Imagine you’re a

This is quite easy to figure out: Conservatives don’t have abortions. The chances of a liberal wanting one not being either in a legal state or directly next to one is rather slim. How many pro-choice liberals live in Nebraska or Utah?
The chance on passing a ban in a state that has a supporting population is almost zero.
If you understand how voting works you can quickly figure out that there is 1 single state in the ConUS where this is a problem (Texas).
In all other states with measurable liberal populations those states are already liberal law states, or those populations live on the border of a liberal law state.

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Lostinlodos (profile) says:

Re: Re: Re:2

Really? Let’s see. Which states have more than rounding error populations of liberals.
California
Washington
New Mexico
Colorado
Even if Oregon and Arizona flip the majority of the liberal population is close to a blue state

Minnesota
Illinois
Michigan
Even if Wisconsin flips the majority of the L population is close to Illinois.
Even if Indiana flips the L majority is close to Illinois.
Missouri’s liberal cities are all on the Illinois border except KS. But KC is on an Amtrak route to IL!

New England and the NE
South East.
All well connected by heavy rail.

Texas is the only state where distance is (logically) a factor. And all the cities have an Amtrak feed.

Rich (profile) says:

And yet, we are the crackpots

I support encryption and privacy. Not so much because I have anything to hide, but because I don’t have anything I want everyone to see.

How did it come to pass that in, of all places, these United States does expressing the importance of the rights to privacy and autonomy can so easily put a person in the looney/crackpot category?

(hint: it ain’t just the hard-right conservatives.)

Why do the same people that time and time again do nothing in the face of tragedy because the average, beer-swilling, wife-beating dunce absolutely should have unfettered access to all the guns and ammo needed to “keep the Government in check, and the People free from tyranny”, put so much effort into fighting privacy and personal autonomy?

Why do the same people that for the last year or two condemned anybody who just questioned the safety of an untested vaccine (with absolutely zero long-term safety studies) to decide if it’s really what they want to give their families, based on the “because we said it’s good for you” assurance from the Government, as being a bunch of dopey antivaxxers, conspiracy theorists, or somehow dedicated “Trump was cheated” white supremacists?

Much like those pictures that look like a bunch of random noise, patterns, and lines that suddenly pop into a 3D rendering when you really look for it, once you see it, you can’t not see it, and there is no meaningful way to explain it to anyone else.

Think hard. Maybe try to unfocus, and look through it.

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