Last week, Deputy Attorney General Rod Rosenstein gave a speech about encryption that prompted a considerable amount of well-deserved blowback. His speech rehashed a number of long-discredited technical proposals for “solving” the “going dark” problem, and it also misstated the law. I won’t address those issues with the speech; they’ve been ably dissected elsewhere, for example by EFF, Techdirt, Robert Graham, and, on this site, Robyn Greene.
I want to focus on the rhetorical framing Rosenstein used. Much of it is transparently hyperbolic. Yet its confrontational tone also signals that the Justice Department believes it may yet be able to seize the upper hand in the current round of the crypto wars.
As in any war, propaganda is an indispensable component here. Branding is key. As cryptography professor Phil Rogaway pointed out in an award-winning paper, even the label “going dark” has a Lakoffian aspect to it, evoking our ancient fear of the dark. When we call this the “going dark” debate (or a “war”), we’re giving more power to that framing. Whoever dictates the labels we use has already begun to channel the discussion in their preferred direction, as Rogaway observed.
What I would brand “strong encryption,” the DOJ likes to call “warrant-proof” encryption. That’s the term Rosenstein uses in this speech. We’re both referring to the same thing: encryption that does not provide a mechanism for law enforcement, or the provider of the encryption, to gain access to plaintext (with or without a warrant). Yet Rosenstein and I use different rhetorical frames, because we have different answers to this question: Should there exist spaces in human society that cannot be policed?
It’s clear what the DOJ’s answer is. There “has never been a right to absolute privacy,” Rosenstein said in his speech. This is an attempt to normalize in Americans’ minds a cramped understanding of how much privacy we have, and a correspondingly expansive view of government power. But it does not reflect reality, even if the DOJ hopes that enough repetition will make us believe it. It intentionally obscures the limits on the government’s historical and legal powers to get evidence.