Inspired by the 2016 case of the encrypted Apple iPhone used by alleged terrorists in the San Bernardino, Calif. attack, this paper explores the question of whether the use of completely unbreakable encryption online or off-line would be considered ethical by the political philosopher John Rawls. Rawls is widely acknowledged as having played an important role in how we perceive freedom and liberty in Western democracies today, and his work on justice, fairness and liberty appears to be a great source of knowledge for politicians, policy-makers and activists. Several recent events and threats to national security of a technological nature have raised ethical questions about the relationship between state and citizen and how technological power should be divided between these two parties, particularly when it comes to the right to privacy. However, in contrast with a wide-spread perception of Rawls’ work, this article shows that there are cases in which Rawls’ principles actually place a limitation on liberty in these matters. This paper presents a thought experiment in which it becomes clear that Rawls’ advocacy for liberty did not extend to cases in which social cooperation in a well-ordered society would be obstructed. Based on a study of Rawls’ work, the author concludes that whereas Rawls would consider strong encryption both necessary and ethical, completely unbreakable encryption would be considered a violation of social cooperation and thus indefensible for Rawls.Contents
Introduction
The San Bernardino iPhone
Breakable vs. unbreakable encryption
Encryption as obstruction of justice or civil disobedience
Encryption as facilitator of free speech and privacy
Utilitarian arguments for encryption
The maximin rule
Unbreakable encryption and maximin
Social cooperation vs. privacy
The appropriateness of strong vs. unbreakable encryption
Conclusion
John Rawls is “widely considered the most important political philosopher of the twentieth century” [1], not least for his contributions to the theoretical conceptions of liberty. When he received the National Humanities Medal from then-President Bill Clinton in 1999, the president said that Rawls had “placed our rights to liberty and justice upon a strong and brilliant new foundation of reason” [2]. Indeed, Rawls is seen as the most important thinker in centuries, when it comes to defending liberty through arguments of reason rather than (only) normative values.
But the perception of Rawls as liberty’s staunchest defender may not be entirely in accordance with what he actually wrote in his substantial body of work. In fact, as I will argue in this paper, there are limits to the freedoms and rights that a citizen can expect, even in the idealist version of society that Rawls constructs through theory.
A less-quoted aspect of Rawls’ theory is that there are cases where social cooperation must take precedence over individual liberties — an aspect that can be at odds with the general perception of Rawls and his political liberalism. In my view, emerging technologies are presenting us with ethical and political challenges that we have very little tradition or theoretical basis for meeting. The application of Rawls’ theories to these new, technologically-born ethical paradoxes may be useful, particularly in questions of justice, fairness and liberty — Rawls’ main areas of concern. Though the results of viewing these challenges through a Rawlsian lens may reveal a path forward for policy-makers and thinkers, this path will also be a somewhat unexpected direction for those who view Rawls as merely a defender of liberty at all costs. For example, Rawls would most likely not side with those who argue that privacy is an irreducible right in a society contingent on technological infrastructures, nor would he argue that liberty must be constant within the same environment.
In the following, I will conduct a thought experiment based on one of those paradoxical challenges mentioned above, the challenge presented by the notion of completely unbreakable encryption. This challenge was initially inspired by the case of an Apple iPhone used by one of the suspects in the 2016 San Bernadino, Calif. attack and the techno-ethical discourse that followed. During the debate over the encryption used by Apple on said iPhone, it was suggested that Apple’s encryption is, in fact, unbreakable, and that the content it protects can only be accessed by the user with a personal key (Brown, 2016; Villasenor, 2016a; Selyukh and Domonoske, 2016). This turned out not to be the case. After putting pressure on Apple’s leadership (who refused to assist in opening the iPhone) and a drawn-out public debate, the FBI managed to break the encryption through other means.
But what if the encryption had indeed been unbreakable? What if unbreakable encryption actually becomes available to everyone? This, I argue, presents a different situation, one in which the application of Rawlsian principles reveals sides of his views on liberty that are not necessarily well known.
In the aftermath of the ISIS-inspired terror attack in San Bernardino, California in December of 2015, the U.S. Federal Bureau of Investigation (FBI) attempted to extract information from a smartphone used by one of the alleged terrorists. The smartphone, an Apple iPhone, was protected by security measures put in place by Apple. The smartphone officially belonged to the City of San Bernardino, and it was therefore not a legal or constitutional matter whether the FBI had permission to break into the phone — the City of San Bernardino had already given permission. The problem was that the FBI was initially unable to break through Apple’s security barriers, as these consisted of a two-step verification/public-key encryption system. The iPhone needed to be unlocked with a personal code only known by the user, and if the FBI attempted a so-called ‘brute force’ attack (using software to randomly enter numbers until the right combination of digits is found), the on-board security software would delete the contents of the phone after 10 failed attempts (Zetter, 2016).
Apple declined to aid the FBI in breaking the security measures, as this, according to Apple, would not only set a dangerous precedent, it could potentially also put the unlocking software code in the hands of evildoers who could use it to break into any iPhone in existence.
Apple, by equating code with expression and speech in a constitutional sense, also claimed that it was unconstitutional for the FBI to compel Apple to write any sort of code, as the First Amendment protects against compelled speech. This happened in response to a court order which was issued to force Apple to comply (Villasenor, 2016b). The question became particularly pertinent as Apple claimed that they could not themselves break into iPhones without changing their entire approach to encryption. Eventually, the FBI found a third-party provider that was able to hack into the iPhone in question (Warren and Hernandez, 2016), but not until a previously held discussion resurfaced in the public discourse: Should citizens be able to use encryption to keep information from the authorities?
Breakable vs. unbreakable encryption
As the Apple/FBI case of 2016 showed, the discussion is somewhat academic as long as encryption is always breakable. Several scholars and practitioners have claimed that the tug of war between creators/users of encryption and hackers that break encryption is perpetual; That every time a new encryption method is created, someone will always find ways to break it, and that there is no such thing as perfect, total security when it comes to protecting digital assets and personal information (Ellison and Schneier, 2000; Chau, 2006; Assante, 2014).
However, with the emergence of quantum computing, encryption is becoming so advanced that unbreakable, impenetrable encryption may very well become a reality. Or, the time between new encryption technology becoming available and that same technology getting hacked, will become longer and longer. The argument for this relates to the division of power that lies in access and ownership of the technology. Quantum computing is expensive, and if it requires quantum computing to break encryption created by quantum computing, those with access to quantum computing will have the upper hand until the cost of this technology drops to a point where hackers (or government agencies) can afford it. Other technologies are also becoming available that are described as unhackable, created by private companies such as Apple (Cuthbertson, 2016), and government agencies such as DARPA (Slezak, 2015). In other words, encryption may not be forever unbreakable, but it is very likely that encryption will be unbreakable for substantial and significant periods of time, depending on the power dynamics and distributions of technologies such as quantum computing.
Encryption as obstruction of justice or civil disobedience
At its core, the Apple/FBI case became one where encryption inhibited law enforcement from conducting what the FBI believed to be necessary information-gathering operations. In other words, the encryption represented, in practicality, an obstruction of justice. Apple’s refusal to comply can also be seen as obstruction of justice or as civil disobedience, depending on your initial view of the case (Jeong, 2016; Dupont, 2016). Dichotomies such as this one riddle the entire encryption debate, but as this paper will attempt to show, Rawls’ work may represent a path forward.
To begin the application of Rawlsian principles to encryption, I will move forward with three assumptions:
- Unbreakable/impenetrable encryption is indeed impenetrable, or at least so functional that it would be impossible, in practice, to break the encryption with any means at hand at that specific moment within reasonable time constraints (i.e., it may be possible to break the encryption, but with the processing power at hand it may e.g., take longer than the lifetimes of those attempting to break the encryption).
- The encryption in question is available to citizens and is not exclusive to certain institutions within society.
- The society examined here can be described as well-ordered in Rawls’ terminology.
The ‘well-ordered society’ in 3. represents one of Rawls’ central concepts. For a society to be just, it must be ‘well-ordered’ in Rawls’ terms. He begins his definition of a well-ordered society by writing:
... to say a society is well-ordered by a conception of justice means three things: a) that it is a society in which everyone accepts, and knows that everyone else accepts and publicly endorses, the very same principles of justice; b) that its basic structure — its main political and social institutions and how they hang together as one system of cooperation — is publicly known, or with good reason believed to satisfy those principles; and c) that citizens have a normally effective sense of the principle of justice, that is, one that enables them to understand and to apply the principles of justice, and for the most part to act from them as their circumstances require. [3] Accordingly, a society that is well-ordered cannot conceal the inner workings of its political and social institutions and everyone within the society must accept its (transparent) principles of justice. This does not mean that e.g., law enforcement or the intelligence community are prohibited from conducting covert operations. It does mean, however, that this must happen on a mandate from the citizens and through regulation and institutions that are transparent. The citizens decide the level of transparency, so to speak, just as citizens must agree upon the same principles of justice in a well-ordered society. The same goes for how justice is upheld, how laws governing the principles of society are enforced. Rawls asserts that there must be institutions of power in place in society for justice to be maintained, but this must be in a way that is mandated by the citizens: “Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.” [4]
Hence, in a well-ordered society, an obstruction of law enforcement is at the same time an obstruction of principles of justice agreed upon by the society’s citizens. By extension, Rawls claims that citizens have a “fundamental natural duty” to “support and to comply with just institutions that exist and apply to us” [5]. If society is just, citizens must comply with its institutions in order for it to remain just. In such a situation, concealing information required to uphold justice from law enforcement would be a failure of compliance with those institutions. However, Rawls also opens the door for civil disobedience and conscientious refusal in cases where societies are only partially just or in which, say, an unjust war is waged by an otherwise just society. Then, the basic liberties of the individual take precedence, in the push for restoration of justice (Rawls, 1971). In this case, however, I have already made the assumption that society is well-ordered and just, and so civil disobedience and conscientious refusal would, at least initially, be in violation of Rawls’ principles.
Encryption as facilitator of free speech and privacy
If concealment of information from authorities through means of encryption is to be seen as more than a simple obstruction of justice in a Rawlsian well-ordered society, encryption must be understood as something which enables the citizen to engage in social cooperation, and somehow supports the exercise of the citizen’s basic liberties. Strong (but not unbreakable) encryption would actually be helpful in achieving this. On the other hand, there is strong resistance towards giving law enforcement and the government powers to break any encryption by default, and by doing so, effectively banning unbreakable encryption. The Apple/FBI case reignited a debate about whether authorities should have so-called ‘back door’ entry to encrypted computing devices — in other words, whether a ‘master key’ should be available to government agencies in matters of national security or local/federal crime investigations. In describing the above scenario, Froomkin and McLaughlin called it the “a new phase of the crypto wars” [6]. They also point out that critics of government back door solutions often argue against back doors as a matter of privacy, linking encryption directly to the privacy discourse. In the Oxford English Dictionary (2017), encryption is defined as a method that can “prevent unauthorized access” or which can be used to “conceal.” By this, and arguably most other definitions, encryption is a tool for concealing things of a private nature and hence a tool for privacy. It can also be understood as a tool for secret-keeping, which some to some scholars, like Posner (1978), is the very definition of privacy, but to many others (Solove, 2011; Diffie and Landau, 2007) is only part of a much larger conception of privacy.
Privacy is intrinsically linked to the most foundational right in a pluralistic liberal democracy: The right to free speech. Although some scholars argue that privacy and free speech can be at odds with each other, as in the case of the press exposing wrongdoings of certain individuals (thereby breaching their rights to privacy) when the public interest is at hand (Mayes, 2002), there is a strong argument for linking the two at a more fundamental level. As Froomkin (1995) shows in his analysis and critique of the NSA Clipper Chip project, encryption is an enabler of the freedoms of speech and association protected by the constitution. He also argues, like Apple did in the recent case, that forcing someone who uses encryption to hand over the decryption key can be seen as unconstitutionally compelled speech, particularly when the compelled speech is not publicized for transparency purposes, as in the case of the financial records of publicly traded companies. In addition to the compelled speech argument, it is imperative for the free exchange of ideas through freedom of speech that ideas can be developed without influence, intrusion or untimely interpretation from and by outside forces. As the British Lord Steyn wrote, quoted in Mayes [7]: “Freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them.”
Referencing classics by Kafka and Orwell, Solove (2011) points to how surveillance and the fear of decontextualized interpretation can have an inhibiting effect on the free flow of information. Being able to develop even the most subversive ideas through discussions with others without the risk of it taken out of context and used against you, is at the core of freedom of speech and thus, the right to freedom of speech by definition must also have a privacy dimension. If a right to freedom of speech exists, so must the right to freedom of speech in private. As Solove (2007) shows, defining a right to privacy as merely a right to keep secrets (as seen in Posner, 1978) is flawed and over-reductive. From such a definition follows that you don’t need protection of your privacy if you have no secrets to hide, which is an invalid argument according to Solove, as it rests on the “underlying assumption that privacy is about hiding bad things. Agreeing with this assumption concedes far too much ground and leads to an unproductive discussion of information people would likely want or not want to hide.” [8]
Running with Solove’s argument, secrets are usually some form of information and hence reducing privacy to mere secret-keeping also reduces the whole notion of privacy to the sub-category of information privacy. More importantly, inserting a normative evaluation into what should or shouldn’t be private based on what is “bad” or “wrong”, turns the right to privacy into a question of moral judgment. It would validate the restriction of human rights seen in many theocracies, which is in direct contradiction to the pluralistic ideal that, among others, Rawls presents us with. In Rawlsian terms, agreeing upon the basic principles in society from a just, original position, would require the ability to freely present and discuss any such principles. This is not to say that privacy cannot be contextual, as Nissenbaum (2004) suggests, but, as will be revealed below, in a Rawlsian well-ordered society, the contexts in which it is restricted must be a result of a just agreement among citizens.
Utilitarian arguments for encryption
In other words, to facilitate freedom of speech, a right to private conversation and development of ideas without fear of retribution is essential. One way of facilitating this is by using strong encryption. By encrypting conversations, they can be kept private from both the government and your peers. With or without Rawls, it is hard to argue against the right to encrypt your communications or utterances under the right to free speech. The question posed in this article, however, is whether this right to encryption also should include the right to use encryption in a manner that is impenetrable and unbreakable as mentioned above, and whether barring law enforcement institutions and other authorities entirely from getting access can be viewed as being compliant with Rawls’ principles. To answer this question, it helps to understand Rawls’ opposition to utilitarianism, his maximin rule and his approach to social cooperation.
Many arguments against government back doors and in favor of unbreakable encryption have a utilitarian flavor. In my view, however, utilitarianism can be used to argue both for and against unbreakable encryption and the result depends on normative stances towards other issues, which basically renders the utilitarian approach useless in this discussion. A utilitarian argument can be made for back doors, as these could be used by law enforcement to protect the vast majority of people who are not cryptography-savvy or tech-savvy and whose need for protection against, say, cybercrime or cyberattacks, is greater than their need for the ability to conduct private communications or conceal information. But privacy advocates could equally argue that unbreakable encryption ensures absolute freedom of speech, which is something everyone in a democratic society benefits from, and those benefits are perhaps greater than the risk of cyberattacks. In both cases, a majority of citizens are given protections we usually associate with pluralist liberal democracies: Equal protection under the law and freedom of speech. The point is, utilitarian reasoning does not provide us with a solution with regard to the conflict between encryption, privacy and enforcement of justice, since it simply becomes a version of the age-old conflict between security and freedom at higher level of abstraction.
Rawls is famous for his arguments against utilitarianism, and this is why it is beneficial to look to his work when discussing encryption and regulation. I would argue that Rawls’ maximin rule is a preferable approach to this question, rather than the utilitarianism-tinted approaches put forth by some participants in the discourse. When one looks at the problem through the lens of Rawls’ maximin rule, it would seem that while strong encryption can be a facilitator of the essential ability to present and discuss ideas without retribution, unbreakable encryption would actually have an almost opposing effect as it would be in violation of Rawls’ maximin rule and hence, inhibit social cooperation.
Rawls uses his maximin principle as a “heuristic tool” for choosing the principles of justice in the basic structure. He stresses that this tool is not a general tool for deciding on e.g., questions of morality, but only pertains to principles of justice chosen in the original position [9]. He states the maximin rule thus: “It tells us to identify the worst outcome of each available alternative and then to adopt the alternative whose worst outcome is better than the worst outcomes of all the other alternatives.” [10] It may seem like stating the obvious that in choosing principles of justice, you should choose the alternative that is least bad. But the maximin rule, as mentioned above, is to be viewed as an alternative to utilitarianism, in which principles are chosen that will maximize the good for the largest amount of people in society, even if this means inequality for some. Rawls illuminates the difference between principles based on the maximin rule and utilitarianism by first stating some conditions under which the maximin rule applies, and then showing how these conditions are what makes maximin more just and fair than a utilitarian method of choice.
The conditions in question force parties in the original position to choose the alternative with the least bad outcome without regard for probabilities, and to base the evaluation of what is worst on “guaranteeable” outcomes and not just what is a possibility [11]. The parties must not ask what should or could happen if an alternative is chosen, but what, based on a reasonable amount of common sense reading of available information, will happen. Utilitarianism does not, in Rawls’ view, set similar conditions. Rather, any information available can be used in determining the best outcome for the largest amount of people, making the utilitarian principles much more relativistic in nature than the maximin principle. The devil is in the detail for Rawls, who unhyperbolically refrains from using examples such as slavery or religious persecution to illustrate the disadvantages of utilitarianism. Rather, he writes:
Consider instead a possible balance of social advantages to a sizable majority from limiting the political liberties and religious freedoms of small and weak minorities. The principle of average utility seems to allow possible outcomes that the parties, as trustees, must regard as altogether unacceptable and intolerable. [12] Thus, Rawls would likely not approve of Germany’s choice of banning public displays of swastikas or France’s ban on niqabs and burkas in public places. It is a utilitarian principle which, in the view of the lawmakers, will be better for society as a whole, but restricts the rights of a small minority. The maximin principle does not allow for this kind of inequality, simply because equality is a basic principle that takes precedence due to the application of the veil of ignorance [13]. In the two examples mentioned above, a gaze through the veil of ignorance would force the restating of these problems as being about banning the display of political symbols in public or restricting a person’s freedom to practice his or her religion in public — both of which, according to Rawls, would be worse outcomes in a free and just society than the consequences stemming from a minority of people displaying swastikas or wearing burkas.
Unbreakable encryption and maximin
This brings us back to the question of encryption. As previously stated, it is hard to argue against the right to encrypt your communication with others. It is not only taking advantage of a tool that is both legal and available, it is also a practical and good way of securing your First Amendment rights without afflicting any harm or economic damage upon others. There is nothing in Rawls’ principles that argues against it, and in some instances, these principles can even be read as being in support of the right to encrypt. But what if the encryption used is unbreakable? Then, I would argue, the application of Rawlsian principles would yield a different result. The rule of law is an important component in Rawls’ well-ordered society. For a circumvention of the rule of law to be ethical in Rawlsian terms, it would take circumstances under which the only way to maximize the freedom of the people is to allow for such a circumvention. An example could be a revolt against a brutal dictator or the like, in which case the society in question immediately is no longer a well-ordered one. Similarly, it cannot be argued that the authorities’ breaking of encryption used by citizens may be the very thing that makes society unjust (which would be an argument in favor of unbreakable encryption), as a well-ordered society is a premise for the application of Rawls’ principles as discussed in this paper.
The rule of law entails at least two things: That the institutions of government follows it as narrowly as it is expected of the citizens they govern, and that the rule of law is just. Both things would be in place in Rawls’ (ideal) well-ordered society. Encrypting your online communication or digital possessions with unbreakable cryptography, however, would be an obstruction of justice in such a society, as it is indisputable that encryption that is unbreakable by law enforcement operatives is a hindrance to the operatives’ abilities to gather information. Even if there is no meaningful information or digital objects within the encrypted container or online communication, ruling that one piece of evidence out is progress in terms of information-gathering as a tool to enforce the law. This kind of obstruction would be deemed unethical under the maximin rule, in which the question of unbreakable encryption boils down to this: What are the worst outcomes of the alternatives regarding the use and legality of such impenetrable protection of digital objects and online communication?
If unbreakable encryption becomes available to everyone, it is almost certain that some will use it. The conditions of the maximin rule and the veil of ignorance prohibits any regard of how likely it is that citizens will use unbreakable encryption or how many citizens will use it. But common sense dictates that at least some will. If unbreakable encryption is used by private citizens, there will, as stated above, be potential for obstruction of justice. Again, I do not speculate on how likely it is that the citizens using the unbreakable encryption will engage in criminal activity that would result in the issuance of a warrant to examine their encrypted objects or communications. But that it is possible is indisputable.
The worst outcome of allowing citizens to use unbreakable encryption is, then, that it will obstruct the work of law enforcement and hence stop justice from being applied. Taken to its extreme, it may rescind a society’s status as ‘well-ordered’ in Rawls’ terminology. Once again, the conditions of maximin prohibits regarding the extent to which this is bound to happen, and so whether it renders law enforcement completely powerless or only affects a few cases, through the veil of ignorance, unbreakable encryption can be seen as a hindrance to justice. The worst outcome of the opposite, banning unbreakable encryption, or somehow restricting the proliferation of it, is that only highly functional, but not unbreakable, encryption is available for citizens to protect their privacy, and that there will always be a risk of an invasion of privacy by state or non-state actors. Applying the same maximin method as above, common sense dictates that it is certain that there will be invasions of privacy under these conditions.
So is a certainty of invasion of privacy a worse outcome than inhibiting justice from being applied? I would argue that Rawlsian principles leads to a negative answer to this question. Though Rawls is known as great philosopher of liberty, he also reminds us that his view of the free citizen is limited to the political concept of justice as fairness. In this regard, he does not concern himself with individual freedom at higher levels of abstraction:
In what sense are citizens free? Here again we must keep in mind that justice as fairness is a political conception of justice for a democratic society. The relevant meaning of free persons is to be drawn from the political culture of such a society and may have little or no connection, for example, with freedom of the will as discussed in the philosophy of mind. [14]
Social cooperation vs. privacy
Within Rawls’ basic structure of society, basic liberties and rights are secured for the citizen in the political sense, not in the more abstract sense. Rawls’ concept of justice as fairness requires citizens to be engaged in social cooperation. He sees the social cooperation of citizens as intrinsic to the construction of a society ruled by fair justice, and defines two ‘moral powers’ by which citizens can express this social cooperation:
- One such power is the capacity for a sense of justice: It is the capacity to understand, to apply and to act from (and not merely in accordance with) the principles of political justice that specify the fair terms of social cooperation.
- The other moral power is a capacity for a conception of the good: it is the capacity to have, to revise and rationally to pursue a conception of the good. [15]
Rawls even states directly in his definition of a well-ordered society that privacy does not play a dominant part in the basic structure, and that any claims to privacy rights are secondary to the social cooperation which constitutes a fair and just society: “A well-ordered society, as thus specified, is not, then, a private society; for in the well-ordered society of justice as fairness, citizens do have final ends in common.” [16]
Could the right to privacy be considered a principle of justice that should be part of the basic structure, agreed upon in the original position by the parties? It could. But then, the question becomes one of degrees. How far does your right to privacy go? This would have to be decided as a part of the basic structure. I would argue, based on what I have shown above, that Rawls’ well-ordered society could never allow for an amount of privacy that is detrimental to others’ ability to exercise their moral powers. If one person’s privacy claims inhibit another person’s acting with full autonomy [17] (and thereby in accordance with the basic principles agreed upon by all), I would argue that Rawls would let the privacy claims take a back seat to the other person’s right to full autonomy. In other words, it is possible to allow for privacy claims within a Rawlsian framework, but the basic principles of a well-ordered society will always take preference over those rights to privacy.
The appropriateness of strong vs. unbreakable encryption
Since Rawls only writes about privacy directly in very few places, Nissenbaum’s (2004) description of similar principles within informational privacy may provide some clarification. Rawlsian privacy, as decribed above, aligns somewhat with what Nissenbaum (2004) writes about as contextual integrity within informational privacy. According to this concept, two norms must be upheld in order for invasions or limitation of privacy to be allowable. One is the appropriateness of sharing information. Nissenbaum argues that it is appropriate to share health information with your doctor, financial information with your bank, romantic information with friends, etc. What is not appropriate to Nissenbaum is to cross those lines, i.e., to reveal religious affiliations or financial status with your employer or share romantic information with the bank. Or, more importantly, that these lines are crossed without the individual’s permission or voluntary participation. The other norm, or set of norms, regards distribution and flow of information. Nissenbaum finds that in some contexts, distribution and flow of private information can be allowable, such as within medical or financial systems, but in most cases, it requires the voluntary participation of the individual to whom the information relates. According to Nissenbaum, to overstep the boundaries of (informational) privacy, the privacy breach must be both appropriate and the flow of information must be acceptable to the person it concerns. If one of these norms are not upheld, the breach of privacy can be viewed as unethical. Rawls and Nissenbaum share the notion that the basic principles agreed upon (what in Nissenbaum’s terms would be deemed appropriate) by the citizens of society and which each of them voluntarily comply with and understand (Nissenbaum’s voluntary participation) determine the restrictions of privacy.
If the citizens of a society decide that strong (but not unbreakable) encryption should be available, and unbreakable encryption should be made illegal, the citizens voluntarily agree that it would be appropriate to let law enforcement attempt to break the encryption used, assuming that it is in the public interest and the process is just. Unbreakable encryption as a violation of social cooperation, on the other hand, could be seen as a flow of information which is not acceptable to a citizen, e.g., in a case where a third party (or a government entity) is sharing unbreakably encrypted information about the citizen, thus shutting the citizen out.
The mere presence of strong encryption makes the Rawlsian argument against unbreakable encryption even more powerful. The fact that encryption exists which requires massive resources to crack, minimizes the amount of people or institutions that are able to invade a person’s privacy and thereby also minimizes the need for unbreakable encryption (unless your only need is to keep those with massive resources from invading your privacy). This argument does not comply with the maximin conditions, but does add weight to the arguments that do.
Strong (but not unbreakable) encryption, in most practical cases, also makes temporality a part of the argument. There is a fundamental difference between strong encryption which takes a long time for third parties to crack and unbreakable encryption, which will either be impossible to crack or will take so long to crack that it might as well be impossible. If strong encryption, which takes a long time to crack, is applied, any breach of privacy would always happen retroactively by definition. It would not be possible for any third parties, including the government, to conduct live surveillance of a strongly encrypted conversation, if the encryption takes a relatively long time to crack.
Above, I have shown that even though encryption is a valid, useful and perhaps even necessary tool to protect privacy under a Rawlsian societal framework, unbreakable encryption is not, as it would be socially uncooperative and a hindrance of justice to allow it. The question remains, however, how you would even ensure that no encryption is ever unbreakable, if you were to attempt the idealistic implementation of Rawlsian justice as fairness.
One solution might be a ban on unbreakable encryption, but in practice, such a ban would be impossible to enforce, as citizens would likely manage to acquire the unbreakable encryption mechanisms through other means if they deem it necessary enough, as examples from pirated music to blueprints for 3D-printed firearms have shown. Another suggestion which is a big part of the debate is the idea of a backdoor, i.e., a ‘master key’ or another technical solution that will always allow law enforcement officers with the right warrants in place to decrypt a device or a communication. This is impractical too, as the global marketplace for code will likely make cryptography available that does not comply with U.S.-defined backdoor regulation.
A third solution is to allocate more resources to government agencies in order for them to hire talented enough staff and do enough research that their operators will always be technologically ahead of any methods of encryption. This could work, but it rests on two major assumptions: 1. That there actually does not exist such a thing as unbreakable encryption and 2. That any type of encryption can be (or will be, in time) cracked with the right amount of technological assets available. It is not within the scope of this article to further discuss a concrete solution to ensure that justice can be applied in an age of high-level or maybe even unbreakable encryption.
One aspect to consider, however, is the temporal aspect. If unbreakable encryption is banned in order to prohibit obstruction of justice, and unbreakable encryption can also be strong encryption that just takes impractically long to break, the amount of time it takes to break the encryption may be a very useful variable. It would require more research to draw any conclusions, but perhaps imposing a mandatory delay or temporal distance between the government’s ability to break encryption and citizens’ ability to encrypt could point towards a balance between the kind of encryption that should be a right for everyone and the kind which should be banned. This is assuming that technology available to the public will always be ahead of what is easily breakable by the authorities (this is actually the current situation, as the San Bernardino iPhone case showed, but that could change). If regulators agree that it should always take at least a week (or a day or a month or a year, the period itself can be determined by the citizens) to crack an encrypted entity, this “privacy buffer” or “encryption quarantine” may give the authorities the ability to enforce the law without giving them the power of live surveillance.
This is a subject which requires further research, most likely in disciplines different from those this article relates to. It is merely the objective of this paper to show how a society based on Rawlsian, idealist principles of justice as fairness allows — and maybe even requires — privacy protection through encryption, but not at the cost of social cooperation and equality, and that unbreakable encryption violates the latter.
About the author
Morten Bay is a Ph.D. candidate in information studies at UCLA. His research interests revolve around the Internet and other networks and how they impact society, ethics, culture and conceptions of reality along diverse avenues, ranging from national security to the proliferation and distribution of news, data and information. He has written four books on these topics which also are at the center of the work he has done in his 20-year career as a journalist.
E-mail: mortenbay [at] ucla [dot] edu
Acknowledgements
The author would like to thank Dr. Leah Lievrouw for her extensive commentary and advice as this paper was being developed.
Notes
1. Duignan, 2010, p. 305.
2. Schaefer, 2007, fifth paragraph.
3. Rawls, 2005, pp. 201–202.
4. Rawls, 2005, p. 137.
5. Rawls, 1971, p. 115.
6. Froomkin and McLaughlin, 2016, headline.
7. Mayes, 2002, part 2.
8. Solove, 2007, p. 764.
9. Rawls, 2001, p. 97.
10. Ibid.
11. Rawls, 2001, p. 98.
12. Rawls, 2001, p. 100.
13. The ‘veil of ignorance’ and ‘the original position’ are two of the most central concepts in Rawls’ theory of justice. They represent a situation of initial equality between citizens while they are creating the basic structure of society. The ideal (and even to Rawls, utopian) construction of a just society happens from the original position, in which no citizen has more power or than another. The veil of ignorance is a tool presented by Rawls which is to be used in the original position when deciding, through reasoning, on the principles of the basic structure. By not taking prior knowledge into account, Rawls argues, one is more likely to arrive at a principle of justice which is fair and acceptable to all.
14. Rawls, 2001, p. 21.
15. Rawls, 2001, p. 19.
16. Rawls, 2001, p. 202, emphasis mine. This quote from Rawls’ (2005) Political liberalism is also restated in his Justice as fairness (2001).
17. Rawls distinguishes between two types of autonomy, rational and full. Rational autonomy is “acting solely from our capacity to be rational and from the determinate conception of the good we have at any time” (Rawls, 2005, p. 306). That is, rational autonomy can be acting in rational accordance with a doctrine of some sort, be it ethical, religious or other. According to Rawls, however, this is not enough if one is to be a citizen engaged in social cooperation: “Full autonomy includes not only this capacity to be rational but also the capacity to advance our conception of the good in ways consistent with honoring the fair terms of social coopration; that is, the principles of justice” (Rawls, 2005, p. 306).
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Editorial history
Received 27 September 2016; revised 11 January 2017; accepted 14 January 2017.
This paper is in the Public Domain.The ethics of unbreakable encryption: Rawlsian privacy and the San Bernardino iPhone
by Morten Bay.
First Monday, Volume 22, Number 2 - 6 February 2017
https://firstmonday.org/ojs/index.php/fm/article/download/7006/5860
doi: http://dx.doi.org/10.5210/fm.v22i2.7006
