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Ignorance of the Facts Should Be No Defense of Law
Even among the rogues’ gallery of US senators I’ve had the misfortune to be represented by — Patty Murray, Barbara Boxer, Ted Kennedy, John Kerry, Elizabeth Warren, and Ed Markey to name a few — Senator Dianne Feinstein stands out. What distinguishes from her colleagues is her peculiar and rather particular passion for championing regulations on matters about which she is wholly ignorant.
Feinstein’s misstatements about, and lack of understanding of, firearms is legendary: She was a driving force behind the assault weapons ban of 1994, which famously banned weapons based more on their aesthetics and ability to use accessories than actual danger. And even if the legislation had been better aimed at banning the manufacture of military-style semiautomatic rifles, the simple fact remains that these weapons are seldom used in crime despite their immense popularity and potential leathality. More recently, Feinstein has turned her attention to data encryption … with the same incompetence.
As with firearms, encryption is relied on by tens of millions citizens everyday for all kinds of lawful, useful, and moral purposes; orders of magnitude fewer use it for nefarious ends. And, as with firearms, Feinstein believes the solution is to ignore the existence of the enormous majority so as to focus on the relative handful of malefactors. As Scott Shackford writes at Reason:
This draft bill does not engage in [informed] debate in any way, shape, or form. Similarly, it does not acknowledge the development of end-to-end encryption, like WhatsApp recently implemented, nor does it consider the possibility of the development of encryption methods designed so that the company itself cannot bypass them.
Instead the bill treats an encrypted device or program like it’s a stuck pickle jar, and the government is doing the equivalent of handing it over to an older brother while muttering, “Here, open this for me.” The bill doesn’t say what would happen if the company is actually unable to comply. It doesn’t present any criminal penalties, but presumably a judge could find companies in contempt.
Reliance on strong encryption is not the sole domain of the tech-savvy and paranoid. If you purchase anything from Amazon, do any of your banking over the Internet, or send text messages through WhatsApp or iMessage, you’re using technology that Feinstein thinks should be severely compromised in the name of counter-terrorism planned by people who are eminently catchable, not terribly sharp, and who often have few covert communications worth intercepting.
Any powerful technology is inherently dangerous, and legislation that seeks to protect us from its bad uses should at least seek to understand and appreciate its good uses. Dianne Feinstein either doesn’t know that or — more likely — doesn’t care.
Published in General
I was going to post on this the other day, but, well, I’m lazy. This proposal by Feinstein is ludicrous, but illustrative. She believes in the all-powerful state, above all other things.
Terrorists use electricity to charge their phones. We would all be safer if the coal industry stopped generating electricity.
Feinstein is speaking for her constituency, affluent progressives in Northern California. Her constituency does not need concealed carry because they can afford bodyguards.
Her constituents aren’t concerned about having their privacy protected, but they might be concerned about being targeted by bad guys whose phones might need to be interrogated as a premeditated form of defense, rather like digital bodyguards.
I’ve noted that in the Obama era, we’ve seriously moved all the way into the “Legislation is Magic” territory. There’s not even an admission that our politicians and bureaucrats have any idea how something might be accomplished. There’s just the assumption that if they pass a law, it will be done.
Any day, I expect Obama and the Democrats in all seriousness to declare high tides are illegal and order the military to take action against them.
Sadly, Feinstein’s response is on par with legislative responses to the digital age going back over 20 years now. Remember when Congress made it illegal to “export” 128 bit encryption? This was just as Win98 was shipping with IE built in, with just 64 bit encryption. You then had to go and hunt for the 128 version and jump through a few hoops to get it.
The feds seem to only want encryption around if they have the master key for it all, roughly akin to your neighborhood police chief forbidding anyone use more than a weak lock on their front door, then demanding the keys to every house because one person out of thousands might have a meth lab.
The ignorance goes in other directions too. Remember the DMCA response to DVD encryption – where the feds kept trying to prosecute anyone who dared publish the open source code for decrypting the laughably weak “lock” on DVDs (even filing charges against a guy who sold T-shirts with the code printed on it)? It’s OK for the feds to bust locks when they want, but not OK for citizens to do the same for goods they own, nor OK for private citizens to distribute knowledge of how encryption works (or fails).
They are in over their heads.
That’s almost certainly incorrect. First, rich people are just as susceptible to being hacked as the rest of us (and there’s more incentive to do so, as they’ve more to steal). Second, Northern California is chock-full of businesses whose revenues are, in no small part, based on their customers having access to strong encryption.
Again, the privacy we’re talking about here includes credit card information used to purchase stuff on Amazon and iTunes, as well as all eBanking.
Obama as the reincarnation of Knute!
Except Knute was trying to demonstrate humility and the limits of temporal power. The Progressives seem to think all that is garbage.
Heh heh … “limits of temporal power”.
And what is this “humility” of which you speak? This is a US Senator, and don’t call her “ma’am,” either.
(I know, that was Babs Boxer, but the principle is apt)
What I keep thinking about when I hear about these anti-strong encryption things is the OPM hack that everyone seems to have forgotten about.
This is a government that cannot prevent hacking into its own most sensitive information and we are supposed to hand over the keys to all of private info to them?
I used to think that she was a lot sharper than Boxer, but it’s become clear that I’m probably wrong.
Everyone hates Microsoft, but at least they are doing something to help.
Feinstein is sharper than Boxer, and that’s even scarier.
Yep.
Obama’s seeing to that for other reasons.
Well, if you’re not doing anything wrong…
Whoa! Okay! … Jeez, libertarians are pretty touchy about this stuff.
As usual, my comments are WOTP, but I hope still interesting.
Silicon Valley observes the form of non-libertarian libertarianism which I think of as “leave my industry alone but please regulate everything else until it squeaks.”
For a time I worked for a startup whose founder named it after one of the Rearden companies in _Atlas Shrugged_. He also spoke in interviews about his libertarian leanings, freedom, etc, etc. But he also bragged to me in 2000 about having given a large amount to the Gore campaign. Thinking he might’ve been hedging his bets, I asked him if he gave a similar amount to W. He looked at my quizzically and said no. I don’t know for sure, but I got the impression that he thought the following: “Gore = tech savvy. Tech savvy = libertarian”, and that’s about as far as he got. Anyway, the company did not make it.
Yeech. Sadly, smarts in one field no not necessarily translate to smarts in another.
This applies not just to legislation, it’s true for anything that came from Obama’s desk. All that’s needed is a Republican president, and the press will pay a LOT more attention to the details, and find creative ways to mischaracterize the effort in negative ways.
Well, high tide is a symptom of man-made global warming, or climate change, whichever you prefer. We all know that the moon doesn’t really have an effect on the tides.
Oh oh, there goes Miami!
This baseball I keep here on my desk is sharper than Boxer.