Communications / Other / Regulation

Privacy Advances or More Privacy Threats? What Might be Wrong with Eric Holder’s Statement

Attorney General Eric Holder said on September 30 that new forms of encryption that are now introduced by technology companies could thwart investigations of kidnappers and sexual predators, putting children at increased risk. In the wake of ongoing revelations of widespread surveillance of data and other electronic devices, Holder’s speech seems to be a well-coordinated campaign by law-enforcement officials to preserve the access to the full range of personal identifiable information on the Internet. Earlier this month, FBI Director James Comey expressed similar concerns after companies like Apple and Google announced that their new encryption systems and privacy commitments could keep users’ data safe from prying eyes of the National Security Agency (NSA) or any law-enforcement agency. However, Holder’s pro-surveillance statement is doomed to be unpersuasive during this Post-Snowden Era, even under the name of protecting children from online abuse.

First of all, Holder overlooked a simple fact that the same security measures that now make it more difficult for police to get into the electronic devices also serve to prevent criminals, like kidnappers and sexual predators, from hacking into people’s personal database on the Internet. In his speech, Holder accused “recent technological advances” of having “the potential to greatly embolden online criminals, providing new methods for abusers to avoid detection.” He said: “When a child is in danger, law enforcement needs to be able to take every legally available step to quickly find and protect the child and to stop those that abuse children. It is worrisome to see companies thwarting our ability to do so.” Here, the “legally available step” is often explained as a “backdoor” that Holder urged for in order to allow government access. However, the technologies with increased security protection are designed to protect users’ private information from anyone else, including people with both good and bad intentions.

For example, the Apple iOS 8 is featured with a certain level of protection that no one could ever have the access to users’ data stored in the system without the users’ passcode. Technology has no preferences. In other words, it is technologically impossible to leave a “backdoor” only for government agencies without undermining the electronic devices’ security, designed to protect users from online criminals. In fact, the push for “backdoor” access turned out to be a failure during the Clinton administration’s idea of “Clipper Chip.” The chip, which was designed to allow government interception of telecommunication systems, granted hackers the same level of access. More recently, it is reported that criminal hackers used a piece of software designed as a government forensic tool during the explosion of Hollywood celebrities’ intimate photos on the Internet.

Additionally, Holder’s statement reflects the fact that the current U.S. legal system cannot assure everyone’s doubt in terms of government surveillance. In the U.S., the primary constitutional limit on government’s ability to obtain personal identifiable information is the Fourth Amendment, which prohibits “unreasonable searches and seizures” of “persons, houses, papers and effects.” However, due to the flawed “secrecy paradigm” (Solove, 2011) inherent in this 18-Centry language, the Fourth Amendment is less effective in protecting people from the government surveillance. “Secrecy paradigm” points out that the Fourth Amendment does not explain what “unreasonable” means. It allows the government authorities great space in bypassing the Fourth Amendment in acquiring personal information.

During the Katz v. United States case in 1967, the Supreme Court decided that the federal authorities’ attaching a listening device to the outside of a telephone booth used by Charles Katz was violating Katz’s Fourth Amendment rights. Justice John Harlan explained that the Fourth Amendment should regulate whenever a person exhibits an “actual expectation privacy” that “society is prepared to recognize as ‘reasonable.'” While it was proposed in response to changing technology, it fails to recognize that individuals want to keep things private from some people but not from others. It compares privacy with “total privacy,” yet overlooks the fact that people do not often have a “reasonable” expectation about privacy when sharing encrypted personal information over phone. Therefore, it is hard to believe that the reason for government officials, like Holder, publicly chastising technology companies for developing more secure technologies was to protect people’s privacy while there is less protection from the government surveillance with the current legal system. On the other hand, in a unanimous opinion by Chief Justice John Roberts, the Supreme Court held on June 25 that police need a warrant to search a cellphone found on a person they arrest. Hence, the government authorities still have the access to the encrypted information of those who they find to be guilty, like kidnappers and sexual predators, as long as they have court warrant.

In his speech, Holder was right about the importance of educating children in order to eradicate their exploitation among the cyberspace. However, he overlooked the technical features of the smartphone OS with increased privacy protection, and bypassed the problem with the current U.S. legal system that led to companies’ new commitment to privacy. Total access from government agencies to users’ smartphones is not a necessary precondition to protect children from potential threats online.





Solove, D. (2011). Nothing to Hide. Yale University Press, New Haven, CT.