Encryption vs. Surveillance in the New Civil Rights Movement

What if in 1960, instead of performing an act of civil disobedience at the Woolworth lunch counter, the Greensboro Four had been arrested for “attempted disorderly conduct” on their way downtown?

Even if the charge were bogus and had no chance in court, its effect on the movement would have been real. Instead of engaging in a high-profile confrontation with the state that highlighted the cruelty of the United States’ racist laws, four young Black people would have been arrested on minor charges – hardly a noteworthy occurrence.

Law enforcement and the intelligence complex are paving the way to preempt activism in this way with their current talk of banning strong encryption while perpetuating an ever-growing system of mass data collection and surveillance. Don’t be fooled by their calls of “terrorism.” Actual terrorists such as al-Qaeda have known about and subverted electronic eavesdropping for decades and will continue to do so. The current efforts at subverting digital security will not stop the Bin Ladens and al-Qaedas of the world. Rather, they will disrupt this generation’s Martin Luther King Jrs., Black Panthers and Greensboro Fours.

The US national security apparatus has historically viewed Black activists as a particularly dangerous threat. During the FBI Cointelpro operations of the civil rights era, agents spied on, disrupted and even assassinated leaders of Black Power organizations. Though it’s been about 50 years since the “I Have a Dream” speech prompted the FBI to consider Martin Luther King Jr. the nation’s “most dangerous Negro,” FBI agents are still 80 percent white (less than 5 percent Black), and 80 percent male. The FBI headquarters, the J. Edgar Hoover Building, stands as a virtual monument to the destruction of Black movements – think of it as the anti-MLK memorial. The absurdity of putting Assata Shakur, a 68-year-old grandmother who has no intention of ever returning to the United States, on a Most Wanted Terrorist list, combined with FBI Director James Comey’s recent attempts to link protests to a fictitious “rise in crime” do little to reconcile the FBI’s anti-Black legacy.

This is the context in which Black activists should view the FBI’s and other agencies’ attempts to gain access to the public’s private data.

It’s Not About Terrorism

Law enforcement officials have learned they can justify any expansion of power by crying “terrorism,” while the public has learned that governments are not particularly good at preventing terrorism (unless they create it). However, law enforcement is really good at one thing: putting Black people in prison. Anti-encryption laws would continue this dynamic, in which the state continues to be basically ineffective against terrorism but gains more and more power to mass incarcerate.

Following the mass shooting in San Bernadino, California, there has been renewed pressure against encryption, building on the familiar calls from law enforcement to compromise public access to strong encryption in the wake of the Paris attacks. As it turns out, the attackers in Paris were known to law enforcement, discussed their plans in an English-language ISIS magazine and weren’t even using strong encryption. However, immediately after the attack, without key facts of the attack, New York City Police Department Commissioner Bill Bratton, along with CIA Director John Brennan, and various other current and former officials, went on a media blitz complaining that governments were “going blind” due to new technology. They didn’t propose any technical or legislative solutions to their alleged problem. Their goal was clear: to equate terrorism with encryption. This kind of disingenuous fearmongering only serves to confuse the real issues and to lead people into wrongly believing that law enforcement’s war on encryption is actually about terrorism.

Meanwhile, Manhattan District Attorney Cyrus Vance has proposed anti-encryption legislation that would allow police to decrypt devices they already have in their physical possession. Vance himself, in a New York Times op-ed, says the law is meant to ” solve and prosecute crimes“; he doesn’t even mention prevention. The proposal asks Congress to “enact a statute that requires any designer of an operating system for a smart phone or tablet manufactured, leased, or sold in the U.S. to ensure that data on its devices is accessible pursuant to a search warrant,” i.e. the ability to read “at rest” (as opposed to “in-transit”) data off captured devices. This data was recoverable on earlier versions of iOS and Android until Apple and Google made it unreadable to everyone, including themselves. This was done partially to avoid giving this power to repressive governments.

The reason Vance’s proposal does not aim to compromise “in-transit” data or third-party applications – the only things that could stop an imminent act of terror in real time – is because of how radical and counterproductive this would actually be.

“It’s completely unrealistic to stop public access to strong encryption,” said Matt Mitchell, a security researcher and encryption trainer with Crypto Harlem. “It would require developers to fundamentally rebuild the internet. Imagine a recall and update to all apps and websites that were not wiretap ready. While terrorist, criminals and monitored foreign governments would move to encrypted technologies that did not have the backdoors because they were not USA-made.”

So, in the end, after the exploiting of public sympathy for Paris and San Bernadino, law enforcement wants to increase its power to fight everyday crime. Unfortunately, these powers are never spared for the “bad guys” and will surely be used against agents for social change.

Counterterrorism as Counter-Activism

The post-9/11 lesson for many activists, journalists and dissidents is that the spying apparatus built as a response to acts of terror is much better at investigating, intimidating and prosecuting suspects than at stopping actual acts of terrorism.

Law enforcement officials do not make clear distinctions between activism and terrorism – they even explicitly conflate the two. Anti-terrorism tools, from spies and infiltrators, to stingrays and MRAPs, seem to inevitably find their way into the hands of local law enforcement officials, where they are used against the public in times of protest. It is disheartening – but not surprising – that within weeks of the Paris attacks, climate change activists have been put under house arrest.

Government secrecy makes it difficult to know the extent of domestic spying on activists, but what we do know is troubling for the prospects of future movements. An illustrative example of how destructive government infiltration can be comes out of Washington State, where a group of antiwar activists called Port Militarization Resistance were spied on electronically as well as through undercover operations. Lindsey Schromen-Wawrin, an attorney for several activists associated with Port Militarization Resistance, explained to Truthout that:

Advocates for positive social change must contend with a surveillance state that seeks to be omnipresent and omnipotent. Antiwar activists in Olympia and Tacoma had a military spy in their movement for two years from 2007 to 2009. He orchestrated preemptive police suppression of demonstrations. He got several activists onto a Washington State domestic terrorist list. He wrecked a movement.

“The lessons folks learned from the spying was that the paranoia is worse than the actual spy,” Schromen-Wawrin added. This “panopticon effect,” the principle that people who think they are being watched will alter their behavior, has real results in deterring people from taking part in activism and other efforts to make social change.

The current wave of Black activists, a predictable target of state suppression, is already feeling the effects of surveillance. Anti-police violence and Black Lives Matter activists are being spied on electronically and by undercover officers and informants across the country. Minneapolis, Chicago, Ferguson, Baltimore, Washington, DC, and New York are just some of the cities where spying has been discovered through government documents, but it is surely more widespread. Sandy Nurse, a veteran New York City organizer who has been a part of many protest actions, explained:

We know that at any time you could be monitored. The police target people they perceive as leaders or people at the front of the march. We’re called out by name by officers and it’s not because we introduced ourselves. They’ve been shown a picture saying this person is a leader. The cops even came, one time, to my four-unit apartment building for a “security check” right before an action I helped plan (it took them an hour to get here when someone was murdered outfront). They make it scarier for people to step up in their activism.

It forces us to be very public. Sometimes the only way to protect yourself is to be super transparent about what you’re doing, which itself creates problems. When you put everything out there, people show up just to disrupt your activism. It also creates barriers. Muslims, trans people, poor and working-class people who are more vulnerable might not show up while those who have more money or privilege to weather out an arrest are more able to participate.

Never knowing whether an organizing space is safe has created a climate where you have all this risk even though you’re not doing anything that could hurt anyone. Why do we have to put our electronic devices in another room just to make a sign and show it to people? We’re not hiding; we’re openly trying to make things better. Why do they need to spend this money to spy on us?

Looking Forward

We are seeing the emergence of a new civil rights movement just as the gains from the previous generation’s movement are being dismantled and some of the most dangerous strains of US racism are being mainstreamed (and even discussed openly by presidential candidates). The ability to confront the state through marches, rallies and direct actions is a necessary aspect of movement building that is threatened by a mass-surveillance society.

Encryption offers this movement a mathematical backing of the First Amendment’s guarantee of free speech and association. Widespread adoption of uncompromisable encrypted communication gives activists, journalists and the public small spaces to be free from government subversion while forcing law enforcement and intelligence agencies to abandon the failing project of mass surveillance. New encryption technology does help.

“Texting with other activists now I don’t feel paranoid like I did a couple years ago. I feel careful,” Nurse said. “A truly free society would welcome this.”