When I teach first-year writing, I sometimes use the story of Charlton Heston’s post-Columbine NRA speech in Denver as an example of rhetorical kairos, keyed to its time and place. (What actually happened, as always, is more complex than the story.) The lesson I try to teach: whatever one’s views on guns after Columbine, the time and place of that speech affected or reinforced them. There is such a thing, I suggest, as a rhetorical moment.
Recently, we were in another such moment in the furor over iPhone encryption. John Oliver did a good 18-minute job of explaining some of the particulars, and it’s worth your time if you haven’t seen it. The furor over encryption, in a US context, was a fight about the intersection of information and technology and politics, and that intersection is one I’ve lately had increasingly strong thoughts about.
I was dismayed to see James Comey, the Director of the FBI who selected the fight with Apple over encryption, taking what became the government’s public stand. Tim Weiner’s excellent 2012 history of the FBI, Enemies, notes (lest we forget) that Comey is the former Acting United States Attorney General who was in the intensive care hospital room on March 10 2004 when John Ashcroft refused the request brought by Andrew Card and Alberto Gonzales from President George W. Bush to reauthorize the Stellar Wind government eavesdropping program. Ashcroft said at the time that it didn’t matter, “‘[b]ecause I’m not the attorney general. There is the attorney general.’ And then he pointed at Comey” (Weiner 434). Comey refused as well. Later, in an admirable 2005 address to the NSA, Comey would describe what then-director of the FBI Robert Mueller “had heard [two days later] from Bush and Cheney at the White House”:
“If we don’t do this, people will die.” You can all supply your own this: “If we don’t collect this type of information,” or “If we don’t use this technique,” or “If we don’t extend this authority.” (Weiner 436)
Eleven years later, Comey supplied his own this.
Comey and the FBI were wrong to demand decryption. Code is speech. Forcing someone to speak is a violation of the First Amendment. Osip Mandelstam was commanded to write a poem in praise of Stalin, refused, and died in a cold prison camp near Vladivostok after smuggling out a letter to his wife asking for warm clothes. Apple’s 3/15 response to the FBI rightly invoked the specter of compelled speech when it pointed out that “the state could force an artist to paint a poster, a singer to perform a song, or an author to write a book, so long as its purpose was to achieve some permissible end, whether increasing military enrollment or promoting public health.” So-called “back doors” that would allow a government of eavesdropping and informants like that of Stalin’s regime endanger us all. And the FBI’s expressed position is hostile to liberty and anti-Constitutional.
Consider the similarly Stalinist inverse of compelled speech: the gag order. On March 31, the Reddit warrant canary died, signaling to users of the site that the site had been served with a US intelligence services warrant and was forbidden by gag order from talking about it. The warrant canary is a nice bit of praeteritio as rhetorical jujitsu that follows from the Lavabit case wherein secure-encrypted email provider Ladar Levison received a sealed warrant (one that he couldn’t say anything about) that required him to turn over encrypted information about his sites’ users, who at the time included the not-yet-notorious Edward Snowden. Levison suffered tens of thousands of dollars in fines and court costs and is still legally forbidden from saying anything publicly about why he had to shut down his business rather than endanger the security of his clients. The Lavabit case gave rise to the increasingly widespread use of technorhetorical praeteritio because the NSA is harvesting your data and sharing it with the FBI, because we are all criminals now.
So I’ll borrow and perhaps differently inflect some words. When freedom shivers in the cold shadow of true peril, it’s always the patriots who first hear the call. When loss of liberty is looming, as it is now, the siren sounds first in the hearts of freedom’s vanguard. The smoke in the air of our Concord bridges and Pearl Harbors is always smelled first by the members of that vanguard: those working at the leading edge, who’ve seen the risks and know how the technology works and know what our government has done. Heroes like Chelsea Manning and Edward Snowden. What kept Edward Snowden safe was the same thing that keeps you and me safe when we pay for something online with our credit cards, or even—more fundamentally—when we say something to one another that we don’t want anyone else to know. It’s OK to keep secrets. You and I do it. The government does it. I used to hold a government security clearance and had to go through a background check to get that security clearance and have access to certain information—information to which I agreed certain other people shouldn’t have access. The government should be able to protect its secrets, and so should you and I be able to protect our secrets.
James Comey now has publicly stated that you should not be able to protect your secrets. The FBI, on public record in 2014, has declared its opposition to privacy for American citizens. So that’s why the Apple encryption case came up: the FBI found an opportunity in a locked iPhone, and with the help of its incompetence and failure to get the data that it easily could have had, wanted to make a public affair over its desire to spy on you whenever it likes. James Comey took a page from the post-9/11 playbook: his argument that we should all be afraid has as its central rationale, “Because terrorists!” Arguments from other government employees have followed suit, telling us to be afraid of “dormant cyber pathogens.” In a Congressional hearing, Comey complained about the existence of “warrant-proof places” in America, and I agree with John Gruber: the Constitution protects those warrant-proof spaces, which include my own mind, and which include the right to assemble with others, in whatever way I choose.
You and I know, reader, that sacred stuff resides in that cryptosystem and algorithm: something that gives that common man the most uncommon of freedoms. When ordinary hands can possess such an extraordinary instrument, that symbolizes the full measure of human dignity and liberty. We have the right to talk to one another however we choose. We have the freedom of speech, the freedom of press, and the freedom of assembly, in ways that no totalitarian regime can repress, thanks to secrecy. Thanks to the technology of encryption.
The FBI has seldom been good with technology. Tim Weiner cites Janet Reno’s 2004 9/11 Commission testimony to observe that in the 1990s, FBI agents “at the dawn of the Internet age lived in a sixty-four kilobyte world. By the time the FBI installed new information technology, it was already obsolete. Reno was shocked to discover that the FBI could not do basic database searches. The Bureau could not put its case files into a computerized system to store and retrieve information” (378). Even in 2000, when FBI Director Louis Freeh “hired IBM’s network operations chief, Bob Dies, to fix the FBI’s computers. . . [t]he average American teenager had more computer power than most FBI agents. The field offices worked with the digital infrastructures of the 1970s. . . ‘You guys aren’t on life support,’ Dies told Freeh. ‘You’re dead'” (Weiner 410). There was a brief renaissance, perhaps, after the 9/11 Commission investigation, but we should be reminded part of the reason why the 9/11 Commission came about. In August 2001, Minneapolis FBI special agent Harry Samit reported to the “headquarters supervisors at [the FBI’s] ITOS, the International Terrorism Operations Section, which oversaw the Radical Fundamentalist and Bin Laden squads, . . . that [Zacarias] Moussaoui was ‘preparing for a terrorist attack,” and his supervisor “begged headquarters to listen” and “said he wanted to keep the suspect from ‘flying an airplane into the World Trade Center'” (Weiner 417). On September 10, 2001, Samit emailed FBI-NSA liaison agent Catherine Kiser that “ITOS had rejected his request for a search warrant. He was instructed that ‘FBI does not have a dog in this fight'” (Weiner 417). Are these the people we want to have backdoors into our smartphones, monitoring all we do? And even now, as an alternative to coerced speech and gag orders, the FBI seems to want to throw up its hands and either farm out its domestic law-enforcement capability to the NSA, or to employ private contractors for its data-harvesting needs. That is poor protection of the sort that we do not need.
That’s why those five words issue an irresistible call to us all, and we muster.
I lament that some people who work for my government, which I see as a mostly good government and which I served in harm’s way as a soldier, want to erode and diminish the dignity and liberty of my fellow citizens. Tiberius said it with withering contempt, and I’ll say it again: “How eager these men are to be slaves.” It’s not just about one phone: it’s about all the phones. It’s about all your location data, your passwords, who called you, what websites you looked at, and all of that data connected to anybody not just that you know, not just that they know, but three hops away. And if the government can’t even keep its own documents a secret, why would you want to let them have possibly incriminating access (because the government kills people based on metadata) to all your communications based on the email of a friend of a friend of a friend?
So as we set out to defeat the divisive forces that would take freedom away, I want to say those fighting words, and especially to you, Mr. Comey: you can have my private data and my strong encryption, you can have your access to my warrantless spaces, when you take them
from my cold, dead hands.
Brilliant.