TheScarab

Many Americans would be surprised to learn, if they have not been paying enough attention to the ongoing debate about the interaction between privacy and cryptography, that the settled law in the US today is that a Judge can order a person to remember that which they have forgotten.

Furthermore, should such a person elect not to obey the order they can be detained indefinitely at the pleasure of the Judge, on the basis that the “keys are in their own pocket”.

But this is precisely where the United States find itself today following the refusal[1] of the United States Third Circuit[2] to review a District Court’s decision to uphold a contempt order against Francis Rawls[3], a former Policeman charged with possession of child pornography in 2015, for claiming inability to recall the passwords to external drives suspected to contain encrypted pornographic images of minors. With further appeal to the US Supreme Court virtually impossible[4], this “power to compel” opinion has indeed become binding precedent.

Whilst the opinion of the Appeal Court Judges is couched in refined judicial reasoning on various nuanced arguments such as whether the “right against self-incrimination” no longer applies when it is a “foregone conclusion” that the information being sought by the Government is a mere formality because the Government already knows that which it seeks to find, the end effect remains the same: the Government now has power over memory[5].

The implications of this power penetrate deep into the very notion of “privacy of thought” itself, raising novel questions about the positioning of cryptography in our emerging understanding of risks to that notion.

“Privacy of thought” is not as hazy a concept as it may sound at first. There is a long and rich literature on the First Amendment dimensions of “freedom of conscience”, as well as on derivatives of Fourth and Fourteenth Amendment protections, connected with many of the issues raised by the US Government’s intent to compel or restrain various mental activities, and how it may seek to override the barriers placed in its way by cryptography.

Among these discussions are those that center on the use of “truth serums” of various kinds, from the electronic (like polygraphs) to the chemical (like sodium pentothal). If a government can compel a citizen to “remember a password” because the government believes that they are lying when they say they no longer remember it, then the question of whether a truth serum might be justified is illuminated greatly by looking at the current, legitimised, alternative: indefinite incarceration on grounds of contempt. Some might contend that in such circumstances a truth serum might be the humane option.

Then there is the issue of context. Alan Westin, writing in the Columbia Law Review in 1966, discussed extensively the differential acceptability of “truth serum” type technologies for intelligence and national security purposes versus for law enforcement purposes.[6] In his view, a truth serum, even when its false positives and false negative rates are as high as 25%, may still be warranted in the national security and counter-espionage contexts. More fascinatingly, he left open the question of whether higher effectiveness and a considerable lowering of the error rate and degree of intrusiveness might lower the barrier for the use of such technologies in routine law enforcement. This is an unresolved question even today.

In terms of legal practicality, the starting point is the thinness of the law on mental coercion. There is a tendency in some legal circles to assert the definitiveness of Townsend v. Sain[7], the only US Supreme Court case where the purported use of truth serum chemicals featured strongly in the arguments backing a successful appeal. The truth, however, is that Townsend is primarily a Habeas Corpus case, with somewhat inconclusive extensions to the self-recrimination and related rights more central to the issue of “mental inviolability”, which lies at the heart of the “privacy of thought” doctrine.

At the core of this issue is the growing ubiquity of technologies such as strong encryption and their capacity to expand the domain of thought beyond the strict walls of the mind and more indissolubly bind thought with its reproduction.

When a person can encrypt most of their communications and expressions, the true meaning and intent of those communications become as hard to decipher as the contents of their mind. When the civil power senses this new phenomenon, it experiences the temptation to abandon the pretence of restraint against mental coercion and assert more openly, even if also somewhat obliquely, that which it has never explicitly repudiated.

It is easy to dismiss the Rawls case because we are dealing with “child pornography” here, a through and through heinous crime. One might argue that such situations outrages our collective conscience to the point where narrow exceptions to the “normal order” should not be exaggerated as presenting a systemic threat. But this perspective stems from a misunderstanding of the deeper issue.

The elements of crime always turn on intent, on mental orientation, something that Courts – and, to a lesser extent, law enforcers – approach via approximation. The ease and coherence of that approximation is the entire pillar supporting the integrity of the justice system.

Let’s go back to “child pornography”, a form of deviance universally damned without room for equivocation. In 2014, a UK man was convicted for possessing manga and anime illustrations of children in states and poses considered “sexually indecent” by the Court.[8] The man continued to protest his innocence on the basis that the images were “art”. Complicating this situation even further, such images would indeed be considered “artistic” and exempt from criminal proceedings in Japan, where they originate.[9]

The determination, therefore, whether nude, prepubescent, cherubim and peasant girls in renaissance art[10] should be treated differently from sexually expressive Japanese anime characters, as they often are in the West, may hinge on various constructions of mental orientations attempted by a Court in the rarefied setting of a courtroom.

Whether the owner is a decadent artist, creepy amateur hobbyist, or “evil” criminal deserving of a custodial sentence to deter others of his ilk, are questions that turn on sometimes arbitrary explorations of intent, sentiment and other mental gestures. Verbal testimony is rarely seen as sufficient.

Investigators have thus tended to require unrestrained access to computing devices and the leeway to reconstruct bits of data and information into something approaching a replica of the “mental guilt state” of the individual under scrutiny. Until strong encryption became so accessible, this “forensic mind reading” task was greatly aided by the government’s vast digital inquisitorial resources, at least in comparison with the individual, no matter how skilled or wealthy that individual might be.

Now that such assumptions no longer hold, the United States and many other powerful governments find themselves in a quandary similar to the one confronted by the Catholic Holy Office and its Inquisitions as their hunt for heresy evolved from suppressing clearly identified denominations and creeds to “decoding” gnostic and mystic texts in order to uncover “hidden meanings” that could convict the suspect regardless of their open expressions and confessions of orthodox faith.

In one particularly laughable episode, Marguerite Porete, was burned at stake in the High Middle Ages for refusing to give the Holy Office in Paris the interpretation of her “Mirror of Simple Souls” that the prying inquisitors believed was deferential enough to purge her of the sin of heresy. Many freemasons and others of like ilk suffered similar fates because of this “decoding” of “ciphertext” problem.

The striking parallel with contemporary times is in the fact that when the quest for truth is expanded beyond law enforcement to the intelligence and national security contexts, the situation is compounded by a higher order problem. Whilst the standards for accuracy may be lowered, a la Westin, the risks of doing so may be more dangerous since some inaccuracies can produce disastrous false negatives[11].

Another less nuanced way of making the same point is saying that there is a very high risk of powerful governments and non-state actors using decoys and obfuscations in what has come to be known as “deniable encryption”.[12] A crude obfuscation scheme is one where the passkey is multi-nested such that only a part of the original message, or even a decoy, is disclosed upon naïve decryption. The “decoytext” may nevertheless be meaningful to a recipient with full context of their origination or, alternatively, may be relied upon to reconstruct the intended message.

When it is thus no longer possible to assert with high conviction, for instance in a court setting, that a decrypted “plaintext” is indeed the original text that was encrypted, we find that we are back to where we started: the truth is only in the minds of their owners.

What happens when such technologies become as widespread among the civilian population as naïve, strong, encryption is becoming today? How would courts determine that the truth has not been forthcoming when the issue is no longer as simple as “frustrating the court’s search warrant by refusing to remember a password”? How would contempt powers help when what is at stake is: “what is truth”? When the “truth serum” alternative yields discredited outputs?

The fascinating thing is that this is a non-problem. The court system has for millennia resolved itself to its modest role of adjudicating among approximations of truth in a world where mental gates cannot be reliably breached. Justice and law enforcement – and dare we add, national security and intelligence gathering – have been reconciled to this reality for eons. And there is nothing perverse about that. We live in a world that strives for equilibrium among competing values and emerging compromises.

What is perverse is the newfound zeal for “total truth”, a height that is unattainable without a totalitarian descent into a regime of cerebral surveillance at will.

[1] Opinion accessible from the worldwide web at: https://cdn.arstechnica.net/wp-content/uploads/2017/03/rawlsopinion.pdf (last retrieved: 2^nd November 2018)

[2] One of the country’s thirteen courts of appellate jurisdiction.

[3] See the District Court’s ruling here: https://regmedia.co.uk/2017/08/30/rawls.pdf (retrieved from the www on 2^nd November 2018).

[4] The Supreme Court of the United States has complete discretion in the exercise of its appellate authority over lower courts, and in recent years fewer than 2% of review requests have been met.

[5] The clearly inadequate legal counsel and representation received by Rawls is not relevant in this discussion.

[6] Westin, A. (1966). Science, Privacy, and Freedom: Issues and Proposals for the 1970’s. Part II: Balancing the Conflicting Demands of Privacy, Disclosure, and Surveillance. Columbia Law Review, 66(7), 1205-1253. doi:10.2307/1120983

[7] For summaries and links to the text, see: https://caselaw.findlaw.com/us-supreme-court/372/293.html (retrieved from the www on 2^nd November, 2018).

[8] See: https://www.gazettelive.co.uk/news/teesside-news/anime-fan-convicted-over-illegal-7958896 (retrieved from the www on 2^nd November 2018)

[9] See, for instance, https://www.nytimes.com/2014/06/19/world/asia/japan-bans-possession-of-child-pornography-after-years-of-pressure.html?_r=0 (retrieved from the www on 2^nd November 2018).

[10] Such as those triumphantly celebrated in collections such as this one: https://www.royalacademy.org.uk/exhibition/the-renaissance-nude

[11] Consider the revelations that US Intelligence Agencies routinely misread the Al Qaeda threat prior to 9/11 despite copious hints and explicit reports.

[12] For additional information on obfuscation-encryption schemes, see for instance: https://eprint.iacr.org/1996/002.ps, https://eprint.iacr.org/2011/046 and https://eprint.iacr.org/2013/454.pdf.