On the "Expectation of Privacy"

In assessing the "search and seizure" of personal data by law enforcement, modern courts have applied the test of "reasonable expectation of privacy." This test implies that if the citizen has used his data in such a way that exposes it to others, for example, used it in a business transaction, then law enforcement may use it against them without restriction.  

The Framers never conceived of this test and might well be surprised by it.  Rather, the tests that they wrote into the Bill of Rights were "reasonable" and "probable cause."  If a search or seizure is "unreasonable," then law enforcement must have a warrant from a court.  The test for the issuance of a warrant is probable cause to believe that a crime has been, not will be, committed.  

These are constitutional tests and they are independent of how the citizen uses his personal information or what his expectations are.  He should not need to do, think, or "expect" anything in order for them to apply.  The tests apply to the behavior of the state, not the expectation of the citizen.  They restrict what the state, the police, may do.  The Bill of Rights places the burden on the state to show that its behavior is lawful, not on the citizen to demonstrate a right or "expectation."  Note that while information obtained in violation of these tests may not be used to convict the citizen of a crime, it is routinely used to investigate, threaten, and coerce, the very things that the Framers feared from a powerful government.  

In some cases, the state, with the tacit consent of the courts, pretends to get a warrant for all searches.  It pretends that it can legitimately collect anything as long as it does not look at it.  However, the Bill of Rights does not limit the tests to searches but also to "seizures." The government operates a data center in Bluffdale Utah.  In a world in which one can put a terabyte of data in one's pocket for $100, the government requires 26 acres of floor space to accommodate the data that it collects world-wide on citizens' communications.  It claims that this seizure is not "unreasonable" and that it does not need a warrant unless it "searches" or looks at the data.  By what reasoning can the arbitrary collection of so much data be called "reasonable?"

I am not hopeful that this view will be argued before the courts or that, even it argued, it will change much.  Nonetheless, I had to argue it.  

Law Enforcement vs. Security and Privacy

A recent report quoted the Director of the FBI as complaining that he had more than 7000 mobiles for which he has established probable cause to believe contain evidence of a crime, but that their security is so good that he cannot be sure.  Well, perhaps his emphasis was different than mine but you get the gist.

Of course, a decade ago he did not have any.  The modern mobile has given him a rich source of evidence that he has never had before.  Instead of saying ”thank you,” he complains that the source is not even richer than it is.  He neglects to say how many mobiles that he has opened while finding the few that he cannot. He neglects to address what percentage of those contained useful, much less admissable, evidence of crimes, a number that might give us some idea of any probative value of the contents of the 7000.

What he is really complaining about is that the default security of these devices raises his cost of investigation. He does not even speak to the resistance to crimes against the tens of millions of legitimate devices, users applications, data, and information that that security provides. Therefore, he cannot even get to the idea that in the absence of such security, there would be fewer devices, users, and applications, much less that his rich source of evidence might not even exist.

He argues that, in order to reduce his cost, the default security of the devices should be reduced.  In spite of all the testimony against this proposition, and the absence of any in its favor, he argues that the purveyors of the mobiles can reduce his cost while maintaining the security against all others.  Without specifying what would satisfy him, he argues that this is simply a small technical problem that the industry can solve any time it wants to.

While the Director talks in terrms of  ”capability,” that he does not have, I talk in terms of  ”cost.”  I assert that if one has a cryptogram, the method, and the key, all of which are on the mobile device, then, at some price, one can recover the clear text. Depending upon the design of the device, the cost may be high but it is finite.  The Bureau demonstrated this for us in the San Bernardino case. After asserting that Apple could, but that they could not, they turned to the Israelis, who for a  million dollars, recovered the data.  Incidentally it proved to be worth considerably less; it provided neither evidence nor intelligence. On the other hand, on a wholesate basis, the cost per device would be significantly less.

One problem is that, whatever the cost, the Bureau prefers to transfer it to the purveyor and the user than to just pay it. It hopes to do this by sowing enough fear, uncertainty, and doubt that a law and order Congress will pass coercive legislation forcing the uninvolved and unwilling to become arms of law enforcement.  If the purveyor is coerced into reducing the security, i.e., a value, of his product, he will lose sales and profit. Remaining users will lose security and privacy, experience costly breaches, and incur costs for compensating controls. 

The net is that, while the Director may not be able to read every mobile for which he has a warrant, he can read most of them.  While he knows what he cannot read, he bears the burden of proof that reading it would yield evidence or intelligence; he has the data, he must share.  We are not talking about cryptography in general but only about the security of mobile devices.  We are not talking about capabitlity but cost.  Not so much about how much as about who will pay; will we pay by taxation on all or coercion of a few?  The Director may have a case, but he has not made it yet.