With the Federal Bureau of Investigation (FBI) attempting to gain access to the San Bernardino shooter's phone, and in the process create a backdoor into encrypted devices across the world - many in the media have framed the issue as being one of privacy versus security. While there is undoubtedly a compelling privacy issue at stake, many advocates have also pointed to another fundamental right at stake - the right of free expression. The Supreme Court has long noted that privacy is fundamental to free expression. More recently, the UN Special Rapporteur on Freedom of Opinion and Expression released a report concluding that strong encryption was essential to protect free expression.
When tackling encryption from a free expression standpoint, many advocates have rightfully expressed fear that "authoritarian" governments could use backdoors into encrypted devices to go after journalists, human rights defenders and dissidents. Yet, by placing the threat to free expression mainly on foreign bad actors, the FBI is being let off the hook. It isn't just encryption in the hands of other governments that threatens free expression: The FBI should not be trusted either, as it has a long history of policing dissent.
The FBI's blatant disregard for the US Constitution during the Red Scare era is generally attributed to its director, J. Edgar Hoover.
One does not need to have a very a long memory to be aware of the FBI's bad acts. In November 2015, the Partnership for Civil Justice obtained documents through Freedom of Information Act (FOIA) requests that describe how, from 2000 to 2010, the FBI used counterterrorism agents to routinely spy on the lawful political activity of School of the Americas Watch, which organizes annual protests against US Latin American policy. Throughout the released documents, the FBI acknowledged the "peaceful intent" of these protests, but continued its counterterrorism investigation. In addition, it was also revealed in 2015 that the FBI had monitored anti-Keystone XL pipeline protesters and Black Lives Matter protesters. All of these allegations come on the heels of revelations about widespread FBI "counterterrorism" monitoring of Occupy Wall Street (once again via documents obtained through FOIA requests by the Partnership for Civil Justice).
The problem with the FBI encryption debate stems from a larger problem with how the FBI is discussed. Discussions about FBI spying - including by earnest civil libertarians - often employ narratives that obscure the root cause: that the FBI is the United States' political police.
Whenever there are discussions of the FBI's policing of political activity, they tend to follow a similar two-part narrative. According to this narrative, the first part of the saga takes place in a long-ago time, nothing at all like today, when the FBI did routinely spy on political groups. The FBI didn't just spy though. It staged illegal break-ins of political groups' offices; it attempted to sterilize Communist Party leader Gus Hall's brother's horse; and it sent a letter to Martin Luther King Jr., attempting to blackmail the civil rights leader into killing himself.
The FBI's blatant disregard for the US Constitution during this era is generally attributed to its director, J. Edgar Hoover. According to this misleading narrative, the problem was not one with the FBI per se, but with a particularly troublesome individual who amassed too much personal power, became too personally entwined with the institution he ran, and used federal police power to carry out his personal agendas and prejudices. Thus, according to this narrative, when Hoover died, ending his directorship-for-life, many of the problems of the FBI were resolved.
This narrative contends that even if Hoover alone was not responsible for the FBI assuming the role of the United States' political police, soon after his death, the US Senate staged a massive investigation, known as the Church Committee, into all of the wrongdoing in US law enforcement and intelligence agencies. It suggests that by bringing misdeeds previously unknown to light, the FBI was able to reform itself. In line with this narrative, the current director of the FBI, James Comey, speaks openly about keeping a copy of the letter Hoover sent to King (urging him to kill himself) on his desk as a warning. If Comey is troubled by the fact that the name of the author of this letter still adorns the building in which he works, he refuses to say so on the grounds that he is "no historian."
The second part of this narrative picks up after September 11, 2001. After the terrorist attacks, many within the government felt the reforms that made sense during the Church Committee were no longer applicable to the urgent needs of national security. In a moment of extreme fear, the FBI overstepped its bounds and increased scrutiny of dissent, which was considered "unpatriotic" or "seditious" in a time of war.
Although the FBI no longer formally polices "subversive" ideas, it continues to use its existing powers to do just that.
This narrative is fundamentally false for multiple reasons. First, Hoover cut his teeth during the Palmer raids, which entailed the arrests of anarchists, socialists and other radicals. At that time, the 24-year-old Hoover was the head of the Justice Department's Radical Division, a section devoted exclusively to policing those with radical political views. The Radical Division would become the General Intelligence Division, which, according to the FBI's own website, was its "predecessor." While Hoover had many peculiar personality traits, he was also undeniably not out of step with the environment that produced him. During this time, many major police departments had "Red Squads," which, as the name would suggest, were intelligence divisions dedicated to "radical" political groups, and many states passed criminal "syndicalism" or "anarchy" statutes essentially outlawing certain points of view. While there is no doubt that Hoover was motivated by a personal antipathy toward left-wing politics, civil rights and dissent, he was not alone in thinking the state was an appropriate vehicle for crushing "subversive" political beliefs.
Another fundamental mistake within this narrative is its assumption that no one knew what was going on. In 1950, the National Lawyers Guild (NLG) - well before Watergate or the Church Committee - had gathered evidence that the FBI used "illegal wire-tapping, mail-opening, and other forms of illegal procedures." However, because the FBI, along with the Central Intelligence Agency and Nation Security Agency, was engaged in extensive spying on the NLG, including wiretaps and break-ins of an NLG office, the FBI was aware of the NLG's planned report. Before the NLG report could even be released, the FBI responded by drafting a report accusing the National Lawyers Guild of being the "Legal Bulwark of the Communist Party."
Citing as evidence that the NLG was a Communist front, the report stated, "The guild today is crying for an investigation of the FBI, the vigilant guardian of our national security, on the ridiculous grounds that it is a 'gestapo' or 'political police' whose practices and policies violate our laws, infringe our liberties, and threaten our democracy." The report also cited as evidence of the NLG following the "Moscow line," an article published by the NLG, stating that "the FBI, and the United States Department of Justice act in close contact with the ultrareactionary Committee for the Investigation of Un-American Activities." The report was released by the House Un-American Activities Committee as the committee's own work, with no mention of the fact that the FBI drafted it (see Robert Sherrill's First Amendment Felon).
The FBI also was not a "reformed" agency until it let zeal for national security, brought on by post-9/11 hysteria, get the better of it. Starting in 1981, roughly five years after the end of the Church Committee, the FBI would begin investigating the Committee in Solidarity with the People of El Salvador (CISPES), first to determine if they were unregistered agents of a foreign power (they were not), and then as part of a "counterterrorism investigation." When this investigation came to light - after a series of suspicious break-ins at CISPES offices that remain unsolved to this day, and two separate FOIA requests - the Senate Select Committee on Intelligence investigated the matter and released a report.
The committee concluded that the FBI had initiated its investigation on the "basis of allegations that should not have been considered credible; it was broadened beyond the scope justified even by those allegations; and it continued after the available information had clearly fallen below the standards required by the applicable guidelines." Stunningly though, the report also concluded that the CISPES investigation was an anomaly that "contrasts sharply with the overall record of respect for and protection of First Amendment rights that characterized the FBI's counterintelligence and counterterrorism programs" at that time, and they did not believe the CISPES investigation was motivated by "ideological or political bias" on the part of the FBI.
CISPES was not the last FBI spying revelation before 9/11, but it is a significant one. Unlike the pre-Church Committee era, the FBI could not be so blatant about its policing of dissent. The official reason the agency chose - "terrorism" - is very telling, since this was a good 20 years before 9/11.
Unfortunately, this narrative has largely obfuscated the root causes of the FBI's continuous political spying. It has led to us to discuss FBI spying in two ways: either as a never-ending series of isolated incidents, possibly stemming from an overzealous response to September 11, 2001; or as an exotic remnant of a bygone era, instead of recognizing a pattern not just amongst current cases of FBI spying, but between the present activities of the FBI and past ones.
The FBI came into being during a time when many openly advocated the idea of policing "radical" or "subversive" political speech. Although the FBI no longer formally polices "subversive" ideas, it continues to use its existing powers, like counterterrorism authority, to do just that. This is not a coincidence, nor is it the product of individual bad actors. It is the product of the institution itself, an institution that was formed to be the United States' political police and continues to play that role. When we obscure this history, we also obscure what is at stake in the encryption debate. There is a multitude of reasons to support strong encryption, but without acknowledging the role of the FBI as the United States' political police, we miss a very important one.
Full disclosure: The author works at the Bill of Rights Defense Committee and Defending Dissent Foundation, but the views expressed here are his own.