ANDREI DAMBULEFF – On the forefront of many American minds today is the threat ISIS may pose to the safety and established freedoms people hold dear. Watching even one of the three presidential debates would have made this pellucid. And despite what one candidate has said about going in and simply stopping ISIS, the reality of doing so obviously entails complex issues. On October 21, several antiterrorism prosecutors addressed the difficulties of data encryption, shedding light on a gray legal area in the fight.[1]
Representatives from four countries asked for help from tech companies and industries in accessing data of ISIS communications.[2] The reality of 2016, nearly 17, is a potential terrorist has a cellphone, just like anyone else. In the same way a person can chat with a friend about going out to kill some beers, members of ISIS can chat about going to kill, well, you know.[3] And one of the most preferred applications among ISIS members for chatting, planning, organizing and recruiting is called Telegram.[4] The central issue is encryption – apps like Telegram generally use end-to-end encryption, meaning the messages are readable only by the sender and the recipient.[5] Not even Telegram or applicable tech company can read the messages.[6]
This essentially allows for easy, wholly private communication.[7] Compounding the problem is tech companies almost universally refuse access to even these encrypted messages.[8] The antiterrorism prosecutors face a situation in which they know how and with what ISIS is communicating, who owns those applications, and how and where the messages are stored. But the prosecutors cannot get the communications.[9]
This issue may spawn memories of the recent spout between Apple and the FBI. This is for good reason because the issue is nearly identical.[10] Law-enforcement organizations want access to private messages, and the people in charge of allowing those messages to be sent are refusing.[11] This environment is one born from the collision of rapid tech advancement with the almost-always-slagging legislature.
There are obvious merits to both sides, and, as usual, there is good reason for the lack of legal clarity at hand. Prosecutors say they are waging the undeniably good cause of antiterrorism.[12] Tech companies are adamant the integrity of private speech must be maintained and cannot be overthrown by the simple possibility of harm.[13] Concerns of any access creating a kind of slippery slope are mostly valid.
Local and national legislatures will need to tackle this situation at a point in the future, and that date is probably not too far away. Tech companies are unlikely to grant access in the absence of a strong legal enticement to do so; companies are already so unthreatened by requests, some of them do not even respond to prosecutors.[14] So the market itself likely will not resolve the fight between the two sides.
Whatever solution legislatures come up with won’t be perfect and will upset one or both sides. But somebody has to do it.
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[1] Matthew Dalton, Prosecutors Call for Tools to Crack Islamic State Encryption, Wall St. J. (Oct. 21, 2016).
[2] Id.
[3] Id.
[4] Chauncey Alcorn, Here’s What Tech ISIS Is Using to Spread Its Message, Fortune (July 25, 2016).
[5] Andy Greenberg , ‘Secret Conversations: ’ End-to-End Encryption Comes to Facebook Messenger, Wired (July 8, 2016).
[6] Id.
[7] Id.
[8] Sylvie Corbet , Counterterrorism Prosecutors Seek Access to Encrypted Data, ABC News (Oct. 21, 2016).
[9] Id.
[10] David Meyer , Here’s Why Apple Is Going to War Over FBI ‘Backdoor’ Order, Fortune (Feb. 17, 2016).
[11] Sylvie Corbet , Counterterrorism Prosecutors Seek Access to Encrypted Data, ABC News (Oct. 21, 2016).
[12] Matthew Dalton, Prosecutors Call for Tools to Crack Islamic State Encryption, Wall St. J. (Oct. 21, 2016).
[13] Sylvie Corbet , Counterterrorism Prosecutors Seek Access to Encrypted Data, ABC News (Oct. 21, 2016).
[14] Matthew Dalton, Prosecutors Call for Tools to Crack Islamic State Encryption, Wall St. J. (Oct. 21, 2016).
