a number of course-altering US Supreme Court decisions last month—including the reversal of a constitutional right to abortion and the overturning of a century-old limit on certain firearms permits—have activists and average Americans around the country anticipating the fallout for rights and privacy as abortion “trigger laws,” expanded access to concealed carry permits, and other regulations are expected to take effect in some states. And as people seeking abortions scramble to protect their digital privacy and researchers plumb the relationship between abortion speech and tech regulations, encryption proponents have a clear message: Access to end-to-end encrypted services in the US is more important than ever.
Studies, including those commissioned by tech giants like Meta, have repeatedly and definitively shown that access to encrypted communications is a human rights issue in the digital age. End-to-end encryption makes your messages, phone calls, and video chats unintelligible everywhere except on the devices involved in the conversations, so snoops and interlopers can’t access what you’re saying—and neither can the company that offers the platform. As the legal climate in the US evolves, people who once thought they had nothing to hide may realize that era is now over.
“There are plenty of people in the US for whom it has always been true that the state wasn’t really helping them and was mostly harming them,” says Riana Pfefferkorn, a research scholar at the Stanford Internet Observatory. “But for those who are now losing faith in traditional institutions of government, it provides room for them to say, ‘OK, what technologies exist for taking back some control?’”
Over the past decades, law enforcement officials around the world have increasingly marked encryption as a hindrance to investigations and, therefore, a threat. The US Department of Justice and other agencies worldwide have campaigned to undermine encryption features with backdoors or make it economically infeasible for companies to offer the protection. While it is important to prevent violence and prosecute activity like the distribution of child sexual abuse materials, researchers consistently note that criminals will deploy and use encryption to protect their data whether the tools are legal or not—as has been the case with terrorist groups like Al Qaeda and ISIS.
Moxie Marlinkspike, the cryptographer who founded the open source, end-to-end encrypted messaging service Signal, explored the question of criminality and access to secure communications in a blog post nearly 10 years ago. “Police already abuse the immense power they have, but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective,” he wrote. "Those in power will essentially have what they need to punish anyone they’d like, whenever they choose.”
The potential for laws to change abruptly and completely was on display last month in the Supreme Court’s New York State Rifle & Pistol Association v. Bruen decision that struck down a century-old concealed carry licensure law with implications for similar laws in other states. And Dobbs v. Jackson Women’s Health Organization instantly banned abortion in many states—a move that means people around the country who were previously law-abiding may now be seeking life-or-death treatment in violation of the law. Furthermore, in restrictive states, people who aid someone who receives an abortion or who are simply close to a patient could now be subject to law enforcement surveillance and investigation, regardless of whether they are ultimately charged and prosecuted.
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Meanwhile, anti-encryption initiatives in the US, including proposed legislation like the Earn It Act, continue to pit law enforcement against technical protections. Pfefferkorn is clear about the divide. “You really can’t be pro-choice and anti-encryption at this point,” she says.
Researchers point out that encryption is often thought of in the context of enabling free speech, but it can also be looked at through the lens of self-defense.
“Effective, uncensorable, secret communications are certainly far more valuable to resistance movements than small arms are,” says computer security consultant Ryan Lackey. “If you had magic, secure telepathy between everyone in your organization, in a civil war or resistance scenario where some of your allies were inside the opposition, you wouldn’t need a single gun to win.”
Lackey points out that there are parallels between encryption and firearms, as laid out in the Second Amendment, an observation that others have explored at times. The crucial element, though, is the connection to a right to self-defense, which the Supreme Court’s Second Amendment absolutists cite repeatedly as the law’s “central component.”
Beyond end-to-end encryption’s ability to protect people from their government, police, and prosecutors, it also protects them from other people who seek to enact harm, be they criminal hackers or violent extremists. While equating encryption to a weapon misconstrues its function—it’s much more shield than sword—these defenses remain the most powerful tool people everywhere have to protect their digital privacy. And a clear parallel can be drawn to the fervor with which gun advocates embrace their right to bear arms.
Stanford's Pfefferkorn points out that it is logical and necessary for abortion providers, patients, or anyone who is pro-choice to embrace and defend encryption in general, but particularly so in light of the overturning of Roe v. Wade. She adds that in this moment, when the Supreme Court is reversing decades of established precedent on a variety of issues at once, the most important generalizable takeaway is the benefits of access to end-to-end encryption, and the necessity of preserving that access.
“Laws can change. Social rules can change. The perfectly harmless conversation you had yesterday might come back to hurt you years from now,” says Johns Hopkins cryptographer Matthew Green. “That’s why we don’t write down every spoken conversation and keep it forever. Encryption is just a way to give digital communications the same basic protections.”
Twenty-six states have either criminalized abortion, will do so, or are likely to take that step. How those laws will be enforced remains unknown. What’s certain is that millions of people who had nothing to hide before the Supreme Court’s June 24 decision now face the prospect of potential targeting, surveillance, and even prison over their reproductive health. And comprehensive encryption will be essential to their self-defense. As Signal’s Marlinspike said during a panel discussion at the 2016 RSA security conference in San Francisco, “I actually think that law enforcement should be difficult … I think it should actually be possible to break the law.”