As this is being written, Apple is involved in a battle with the state over cracking its own security measures. The company has made its case via a letter to the customers. Although I have written on the matter of encryption and backdoors on other occasions, I will focus on why American gun rights advocates should back Apple in this particular matter and support encryption in general. To do so I will make use of three stock gun rights arguments. As always, I will also consider reasonable objections against my view.
The comparison of guns and encryption was inspired by two main factors. The first is that the alleged San Bernardino shooter whose phone Apple is supposed to crack used guns to commit the alleged murders. However, the central debate arising from this situation is over the alleged killer’s phone. The second is that encryption has been classified as a weapon, which makes for an interesting connection to other weapons, most importantly guns. I now turn to my arguments.
One standard argument in defense of gun rights in the United States is to appeal to the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This is supposed to provide citizens with the right to own weapons and is often used to argue for the rights to carry weapons openly.
While there is obviously no Constitutional Amendment that mentions a right to encryption, this right would appear to fall under the Fourth Amendment: “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
While people can obviously be more or less fixated on different rights, if gun rights are regarded as justified by the Constitution, then consistency would require accepting that a right of encryption is justified by the Constitution. As such, gun rights advocates should also advocate on behalf of encryption rights.
It could be objected that while the Constriction makes clear reference to arms, papers and effects, it makes no reference to digital data. As such, since there is no right to be secure in regards to digital data, there is no right to encryption.
The easy reply to this is to employ a version of the argument used by gun advocates when their critics point out that the arms referred to in the Constitution are flintlocks, swords, and bayonets. That is, 18th century arms. The response is, of course, that “arms” now includes modern weapons as well, such as assault rifles. The same sort of argument can be used in support of encryption rights: the modern version of papers would include digital data—in the 18th century “papers” referred to a means of data storage.
Another objection is that the Fourth Amendment does not grant a right to encryption—it merely grants a right to be secure such that the state has to go through a specific process to violate that security. Crudely put, it is not a right to have locks on your door; it is a right that the state must have a proper warrant before coming in. In the case of digital data, the lock would be the encryption.
The reasonable reply to this is supplied by Thomas Hobbes. He made the excellent point that a right without the means to exercise it is not a right at all. As such, the people need the means to exercise their right to be secure and this would cover the use of encryption.
A final objection is that even if people have a right to encryption, it does not follow that they have a right to unbreakable encryption that would keep the state out. After all, the Fourth Amendment allows for reasonable searches and seizures.
The reply to this is to point out that while reasonable searches and seizures are allowed, they are not granted to the state as a right. That is, the state does not have a Constitutional Guarantee to get into our effects and papers. As such, citizens are under no obligation to provide the state with a means to access their papers and effects.
Given these arguments, there would seem to be a Constitutionally protected right to encryption and those who profess a love of the Constitution and the Second Amendment in particular should lovingly embrace encryption.
A second argument commonly used by gun advocates is that citizens need guns in order to protect themselves from criminals, terrorists and other bad guys. This argument is used even in the face of the obvious fact that criminals, terrorists and other bad guys use guns to cause harm. When it is argued that the way to ensure safety is to restrict or even eliminate gun ownership, two stock replies are that then only the bad guys will have guns and that the only way to stop a bad buy with a gun is a good guy with a gun.
The same sort of argument applies to encryption: there are criminals, terrorists and other bad guys who want to harm us by getting into our data. Just as a gun is supposed to protect a citizen from threats in the physical world, encryption is a weapon of defense in the digital world.
It can be objected that the bad guys will also use encryption to protect themselves from law enforcement. However, this is exactly like how the bad guys also use guns to protect themselves from law enforcement. As such, if people should be allowed to have guns to defend themselves against bad guys, the same right of self-defense justifies the possession of encryption. If it is argued that citizens should give up encryption in favor of safety, then the same must be said of guns—something that certain politicians apparently do not grasp.
It might be said that while citizens do have a right to encryption, the state must have the means to turn it off so it can engage in investigations and spying on the bad guys. The same argument could be made for a “turn off” device for guns that would allow them to be remotely disabled by the state—citizens who are law abiding will have nothing to worry about, since the state would have to go through due process to turn off their guns.
The response to such a gun switch proposal is easy to imagine—gun rights advocates would point out that the bad guys would soon acquire the means to turn off the guns of honest citizens and leave them helpless in the face of an attack. The same concern applies to having an off switch for encryption: the bad guys would soon have it and use it to harm honest citizens. As such, citizens need unbreakable encryption in order to be safe and this should be supported by those who believe that citizens need guns to be safe.
The third commonly used gun rights argument is based on the claim that citizens need guns in order to protect themselves from the tyranny of the state. The idea is that armed citizens provide a deterrence against state tyranny and arms provide a means of defense should deterrence fail.
This argument can also be applied to encryption: the rights of the citizens are protected from the state’s intrusion because the state cannot gain access to the citizen’s papers without the consent of the citizen. In this regard, encryption provides even greater security than the gun—the state, after all, has much larger guns and can easily kill any citizen or any mob of small arm carrying citizens. But encryption that it cannot break puts every citizen on equal footing with the state in this regard. Because of this, those who are worried about the tyranny of the state should support encryption.
In light of the above arguments, those that favor gun rights should also back encryption rights. After all, the justifications for gun rights even more strongly support the right to encryption.