THE BLOG
10/09/2014 06:14 pm ET Updated Dec 09, 2014

As Surveillance Reforms Languish, New Tools for Consumers to Protect Data Criticized by FBI

Recent statements by FBI officials, including Director James B. Comey, are revealing and troubling. They criticize tech companies for deploying technology and privacy measures that more effectively protect customers' and citizens' communications and information from scrutiny.

These statements are in response to mobile security features in the updated operating system accompanying Apple's recently released smartphones, as well as updates by Google. Other companies are expected to follow with similar long-overdue security enhancements in order to compete and meet consumers' demand.

The newly strengthened smartphone encryption measures would simply remove device and software manufacturers from the middle of the security equation and instead let consumers take the steps needed to prevent hackers, identity thieves, stalkers -- and indeed, the government -- from easily intruding into their communications.

The companies will provide greater security for their users' data by preventing would-be intruders from bypassing their smartphones' passcode locks. Until this point, law enforcement has enjoyed the convenience of bundling up a consumer's smartphone with a warrant, sending away to the manufacturer for a bypass and extraction, and receiving the requested contents in the mail soon after.

It's easy to understand the unquenchable desire of many in government to want as much information as possible about everyone with minimal obstacles. But understanding this desire doesn't make such an approach Constitutional, legal, or wise.

The Fourth Amendment preserves the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures..." Implicit is the understanding that it should not be an easy thing for the government to read our communications or avail itself of the most intimate details of our lives -- regardless of the motivation or context. Reasonable limits on government intrusion are essential if we are to fully enjoy our other fundamental liberties -- including the ability to speak freely and associate with whomever we choose, and to participate in the political process without fear or intimidation. The sheer quantity of information detailing a person's life now stored on smartphones heightens risks related to search and seizure.

The past year of revelations about law enforcement and the intelligence community's pervasive surveillance and collection of data from Americans, and others around the globe, has demonstrated how far the pendulum has swung away from reasonableness. Rather than an environment based on individuals' freedom to act with limited intrusion from the government, the new norm being advocated is one where privacy-enabling technologies are decried as an intrusion on the government's ability to act. The privacy tools that consumers seek from the tech industry are an effort to restore that traditional equilibrium.

Increased security for the contents of smart phones simply empowers consumers in the digital world, and leaves the government no worse off than it is in the physical environment. Law enforcement does not ask locksmiths to design easily picked locks. That would defeat the purpose of consumers buying them to make their homes secure from thieves and other intruders.

However, pursuant to a lawful search warrant which respects constitutional imperatives, government agents can use legal tools to compel the homeowner to let them in, or find a way in themselves. The same remedies remain available to the government when seeking information stored on a user's smart phone -- without putting manufacturers in the middle.

The tech community is perhaps uniquely appreciative of the importance of our constitutional protections in preserving the open and free environment in which ideas can be freely communicated, innovations inspired, and individuals empowered. It is inappropriate for the tech community to be in the business of building products with backdoors that make it just as easy for criminals to access consumers' personal information as it is for the government. Increased privacy measures are just some of the many features logically available -- and in demand -- for a new smartphone.

Thus, the FBI's complaint about individuals placing themselves "beyond the law" rings a bit hollow. It both ignores the Constitutional realities of government access to individuals' data and lacks self-awareness for government's own role in consumers' desire for these improved privacy measures. Law enforcement and intelligence agencies need to recognize the importance of industry maintaining a trusted relationship with its users.

The government's tilt in past decades away from respect for civil rights in favor of intrusive measures in the name of security has already harmed our foreign relations in many ways. A myopic, non-strategic approach to the Internet and modern technology has similarly undermined our nation's ability to lead the world toward greater openness, freedom, democracy, and real security. It's time for government to embrace, not try to manipulate, the Internet era.