"Do you have no other way of investigating these criminals?"
"Could you not put an officer out to surveille them?",
Your argument kind of falls on itself there --> We can surveil them in person, but not digitally?
Why?
I think the tech crowd has this wrong.
The issue - as you have indicated - is not 'By What Means To Surveil'.
The issues are: Legitimacy, Proportionality, Oversight.
Messages, tech, sign language, in person, phones or messaging pigeons, the issue remains the same:
Is there a legitimate reason for access?
Is the intervention proportional to the probability of cause, the ostensible crime, the risk to other citizens and the public good?
Is there authoritative Judicial oversight of the surveillance, and, is there sufficient Congressional oversight of the legality of the program?
Those are the questions.
Should police be able to tap Signal (or anything else) for data on anyone they want, for whatever they want, willy nilly without a Warrant or oversight?
Definitely not.
Should Apple be scanning content for crimes?
Probably not, but that's slightly more complicated.
Should the police be able to access the Signal messages of someone they apprehended at a murder scene wherein other suspects fled the scene, and are therefore likely the suspects accomplices?
Likely yes. Or at lest, most people would agree with it both in the pragmatic sense, and also the Constitutional sense.
Should the FBI be able to, with special permission of a Federal Judge, watch all cell tower transactions in 5x5 mile grid grid, while there's a literal manhunt on for literal terrorists during a literal state of emergency?
Probably yes again, it's hard because the proportionality and tactics are rare and unique.
> Your argument kind of falls on itself there --> We can surveil them in person, but not digitally? Why?
Because, before the internet, when surveillance was a lot of work, this prevented the abuse that is mass surveillance.
Only now do we see how much democracy relied on this natural limitation of state power for civil rights. It was never just the need for warrants that maintained civil rights. Remember the Verizon FISA court order authorized surveillance of millions, and that was just one order of hundreds.
Power corrupts. State power should be sufficient, but minimal. Being allowed to do physical surveillance only is sufficient to reduce crime rates to the point where most people can safely neglect that crime exists at all, and it is less power because it does not scale.
You mention proportionality yourself. Proportionality means that something is not done if the same objective (finding a given murderer) can be achieved in a less rights-infringing way. Proportionality at the policy level, means that a surveillance power may not exist, if its objective (such as safety from murder, i.e. low rates of murder, high chance of finding murderers etc.) can be achieved without the power or with a power that is less likely to be abused or that infringes rights of suspects less. (I admit this is somewhat of an editorialization; the technical meaning of proportionality is in [1]. To be clear the existing legal proportionality principle does not try to directly minimize power; but it does usually present an obstacle whenever new powers are created by law)
Limiting power is simpler and less error-prone than allowing power and adding control structures like warrant requirements for the power. It is thus better, if the outcome is the same.
> Should the police be able to access the Signal messages of someone they apprehended at a murder scene wherein other suspects fled the scene, and are therefore likely the suspects accomplices?
> Likely yes. Or at le[a]st, most people would agree with it both in the pragmatic sense, and also the Constitutional sense.
Sure, but that is not the question. The question is: should Signal be forced to implement its software in a way that allows the police to access its messages?
Likewise, everyone also agrees that in person surveillance is in general legitimate, but that doesn't mean that we all agree that the government should be able dictate burdensome measures on third parties to make it easier to perform this surveillance: say require that the friends of the suspect keep notes on his whereabouts. Changing its architecture would cost Signal a lot of money and good will, and the suspect would probably not be very happy that his friends ratted him out as well.
They can easily read all the signal messages they want, by getting the phone Signal was installed on(assuming the user is logged into Signal, which 99% chance the answer is yes).
They are not willing or able to do that for whatever reason, but the ability exists.
I agree the technology used is a secondary issue, but Law Enforcement got lazy when they were able to wire-tap phones willy nilly whenever they wanted. They need to get un-lazy again. They can do all they want to do without needing un-encrypted traffic, un-encrypted traffic just makes them not have to work as hard.
I'm fine with them having to work harder instead of them getting to see all the communications they could ever dream of.
> Should the police be able to access the Signal messages of someone they apprehended at a murder scene wherein other suspects fled the scene, and are therefore likely the suspects accomplices?
I believe under those circumstances, the police should be able to apply to a judge for a warrant, and if probable cause is found and a warrant is issued, attempt to access the Signal messages of such a person. A requirement that they succeed has technological implications; Signal, the device, or both would have to contain a backdoor, or use security measures that are not very effective.
I am an absolutist on this question; I don't think governments should have the authority to mandate backdoors in products or services even if doing so would result in the prosecution of many criminals who otherwise go unpunished. For those who want to balance the government's interest in prosecuting criminals against secure and private communications, the question I would ask is: how often do investigations or prosecutions fail because it was impossible to access encrypted data with a court order? A precise answer might be difficult since the content of the encrypted data is unknowable, but an upper bound could be established by assuming such encrypted data is always incriminating.
Are they though? First it's "only" to catch the super-terrorists. Then it's only to catch the murderers. Then it's for VIP missing person cases. Then it's petty crime. Then it's for political opponents. Then nobody dares ask anymore about "legitimacy, proportionality, oversight."
When those in power grant themselves more power, the onus is on them to prove they can't abuse that power. Of course, the way power works is they have that choice and we don't.
And to be clear, this isn't some hypothetical slippery slope, either - we've literally already seen it happen. E.g. various legislation passed ostensibly to target terrorism is routinely misused. Here's just one example that predates the Patriot Act, even: https://www.hrw.org/report/2010/07/04/without-suspicion/stop....
I don't think your link supports what you're saying at all...? In fact it gives examples of police forces voluntarily limiting it's use, essentially the opposite of a slippery slope...
"Could you not put an officer out to surveille them?",
Your argument kind of falls on itself there --> We can surveil them in person, but not digitally?
Why?
I think the tech crowd has this wrong.
The issue - as you have indicated - is not 'By What Means To Surveil'.
The issues are: Legitimacy, Proportionality, Oversight.
Messages, tech, sign language, in person, phones or messaging pigeons, the issue remains the same:
Is there a legitimate reason for access?
Is the intervention proportional to the probability of cause, the ostensible crime, the risk to other citizens and the public good?
Is there authoritative Judicial oversight of the surveillance, and, is there sufficient Congressional oversight of the legality of the program?
Those are the questions.
Should police be able to tap Signal (or anything else) for data on anyone they want, for whatever they want, willy nilly without a Warrant or oversight?
Definitely not.
Should Apple be scanning content for crimes?
Probably not, but that's slightly more complicated.
Should the police be able to access the Signal messages of someone they apprehended at a murder scene wherein other suspects fled the scene, and are therefore likely the suspects accomplices?
Likely yes. Or at lest, most people would agree with it both in the pragmatic sense, and also the Constitutional sense.
Should the FBI be able to, with special permission of a Federal Judge, watch all cell tower transactions in 5x5 mile grid grid, while there's a literal manhunt on for literal terrorists during a literal state of emergency?
Probably yes again, it's hard because the proportionality and tactics are rare and unique.
The technology is a secondary issue.