Our lives are increasingly intertwined with technology, and people must be able to communicate privately and securely. End-to-end encryption is the best protection, offering individuals the assurance that their personal data are shielded from prying eyes. As employed in Apple’s new iCloud implementation and in messaging apps like WhatsApp and Signal, this technology can ensure that only the sender and the intended recipients can access the content of a message. This level of security not only protects individuals from cyberattacks but also empowers citizens to communicate freely without fear of surveillance, censorship, and warrantless searches — whether by the government, Big Tech, data brokers, or anyone else.

The global public wants strong cybersecurity protections, the ability to conduct private and intimate conversations without surveillance, and safety from abusive governments, retaliatory bosses, abusive partners, fraudsters, intrusive marketers, and criminals alike. To that end, the public is adopting secure messaging at a rapid pace. WhatsApp’s user base grew over 12 percent last year and now has 2 billion monthly active users. In January 2022, Signal Messenger was estimated to have 40 million active users, which does not include its surge of users in Ukraine following the Russian invasion.

That is why civil society, including the ACLU, criticized Apple’s 2021 plans to build tools that would scan private communications on iPhones. Apple planned to update iPhone software so that it would scan photos users planned to send for child sexual abuse material, or CSAM. Its scheme was designed such that Apple would learn when a user had uploaded a threshold number of images that match known CSAM imagery. But privacy advocates, technologists, and human rights groups quickly pointed out that Apple was building a new form of surveillance which posed serious risks to privacy and civil liberties. If this backdoor feature were built in, governments could compel Apple to detect and report images that politicians find objectionable because they praise opposition parties, mock political leaders, celebrate protest movements, promote disapproved political messages, or circumvent government censorship regimes.

Apple’s New ‘Child Safety’ Plan for iPhones Isn’t So Safe

The tech giant’s latest proposal paves the way for even more intrusions on privacy and abuses of power.

Source: American Civil Liberties Union

To its credit, Apple listened. Now, Apple has moved forward with what it calls “Advanced Data Protection.” That means that shared content in iCloud Shared Photo Library, iCloud Drive shared folders, and shared Notes will be end-to-end encrypted, if all participants have Advanced Data Protection enabled. Meta has also announced (delayed) steps to offer end-to-end encryption on Facebook Messenger and Instagram direct messages. These improvements in communication security by services used by millions are long overdue.

Many powerful forces do not want these improvements. They’ve gotten used to the flood of data that has become available over the last decade or two. Everywhere we go, almost everything we communicate — our emails and direct messages, our clicks and “likes,” our shared photos, our search engine queries, and our web browser histories — is now logged by our cell phones, our internet service providers, and online services and available to governments. Physical surveillance is also at an all-time peak. Street cameras are just one example; these have proliferated, and increasingly feed into systems with face surveillance technology and license plate reading capabilities. The list goes on. We live in a golden age for surveillance, and it is safe to say that governments and corporations have never had more information about people than they have today.

Globally, governments like the new data bonanza and want to keep things this way. They want to be able to spy on what we do and what we say, and not only for legitimate purposes or constrained by legal protections. The Mexican government investigates individuals advocating a tax on sugary drinks. In the United States, the Department of Justice pressed Google to turn over a reporter’s emails, police raided the offices of a local newspaper investigating allegations against the chief of police, and federal authorities are investigating a reporter who uncovered video suggesting Fox News covered up disturbing comments from a celebrity interviewed by one of its hosts. Additionally, Americans’ messages get swept up in bulk during warrantless foreign intelligence surveillance and are secretly searched without judicial oversight.

Biden Knows Section 702 is Unconstitutional, Yet His Administration Still Defends It

Congress must stop this mass warrantless surveillance and abuse of government power.

Source: American Civil Liberties Union

Recently, several organizations initiated PR campaigns excoriating Apple and Meta for providing the public with more safety and security, seeking to blame encryption for CSAM. These campaigns use triggering imagery of young, sad children, photos that tug on our heartstrings and make us sick to our stomachs with the thought of the abuse that has been inflicted on some of the most vulnerable members of our society. But they do not acknowledge the serious dangers created by a less free and less secure internet.

These legitimate emotions threaten to make us forget the many people whose human rights and safety interests are protected by encryption. These victims go unmentioned in anti-encryption campaigns. It is nearly impossible to quantify the fallout from the persecution of people betrayed by insecure messaging, whether it be an increase in domestic violence, a chilling effect on journalists and whistleblowers, the concentration of power in the hands of corporate and government elites, the silencing of dissent, or the neutralizing of political opposition. Anecdotes of reporters, activists, grieving families, civil rights lawyers or others who have been spied on, here in the United States, fail to adequately encompass the scope of the surveillance problem or its impact on the public interest.

There’s a short-sighted belief among some politicians and law enforcement that political success in undermining encryption would have the added benefit of providing police with cheap, easy, and plentiful access to sensitive data — for all sorts of investigations. But this approach will cause more harms than it resolves. Encryption prevents crimes. Everyone needs safety, and in a world where our information is everywhere for use and abuse by criminals, cops, and corporations alike, encryption — and cybersecurity more generally — should be a priority for all.

Last month, a 47-year-old Black woman named Ternell Brown filed a complaint against the Baton Rouge Police Department in Louisiana for hauling her to a warehouse and subjecting her to a sexually abusive search after a traffic stop. This is the same police department that in 2016 fatally shot Alton Sterling while he was lying on the ground, leading to uprisings. And now, three Baton Rouge officers have been arrested for allegedly destroying video evidence of excessive force during a strip search.

This is shocking, but not surprising. Sexual abuse, like that alleged by Ms. Brown, is one pernicious form of persistent police violence. And like excessive force, it grows from conditions that condone or fail to curtail police misconduct. To address police sexual abuse, authorities should prevent its occurrence and repair its harms.

Police sexual violence is when officers, on or off duty, commit sexually abusive or degrading acts against others. This may include sexual harassment, sexual assault, invasive and degrading frisks and strip searches, and sexual extortion. Police sexual violence is grossly underreported, but research shows it’s systemic. One study found that, over a 10-year period, a police officer was caught committing sexual abuse or sexualized misconduct at least every five days. Another found that sexual violence was the second most reported form of police misconduct, after excessive force.

The people most targeted by police for sexual violence are from historically marginalized backgrounds, including women of color, LGBTQ+ people, sex workers, and people vulnerable to threats of incarceration. For example, the ACLU and the ACLU of Montana recently filed an amicus brief supporting L.B., a Northern Cheyenne woman who was sexually assaulted by an on-duty federal law enforcement officer after calling for help. The officer coerced L.B. to perform sexual acts by threatening to arrest her and have social services remove her children.

This is not merely a problem of “bad apples.” It’s a problem enabled by power imbalances between officers and community members and a patriarchal culture of secrecy and silence. It commonly arises in police departments where leadership and local authorities ignore and tolerate patterns of abuse. One of us, for example, recently represented a Black man with a substance use disorder who was beaten and repeatedly punched in the groin by officers from the Bronx Narcotics Unit. There were 560 prior lawsuits against this unit, with over 150 for excessive force, including for sexually abusive conduct like strip searches and handcuffing a naked pregnant woman to a bed. The officers involved had previously been defendants in at least 50 lawsuits alleging similar misconduct. None appear to have faced consequences, and they’re still on the job. The Baton Rouge Police Department also has a long record of excessive force and brutality complaints.

We Need Accountability for Those Who Commit Violence Against Native Women

Source: American Civil Liberties Union

There’s no simple solution to the problem of police sexual violence. A solid start, though, is acting to rectify the violence and repair its harm.

In this context, “rectify” means establishing systems inside and outside a police department that interrupt and prevent abuse. One example is a system whereby a police department tracks lawsuits and complaints against officers and investigates allegations to determine whether there’s a widespread problem. If their investigation reveals a problem, they take corrective action. Research shows that such proactive interventions can reduce excessive force. Layered over this should be outside, transparent review to ensure proper, timely action is taken. Had Baton Rouge used a system like this, Ms. Brown could have been saved from that horrific ordeal.

Rectify also means preventing recurrence by holding officers accountable and demonstrating governmental commitment to upending norms of abuse. This includes strengthening discipline and civil liability for officers who commit sexual violence. The L.B. case, for example, asks the court to recognize that law enforcement officers act in the scope of their employment — and that the government is therefore liable under the Federal Tort Claims Act — when they weaponize their authority to commit sexual assault. The ACLU and the New York Civil Liberties Union have also supported expanding the power of civilian review boards to investigate police sexual violence.

“Repair” means ensuring the harms from police sexual violence are redressed at an individual and community level. Localities should act swiftly to acknowledge the harm and compensate those injured, without subjecting people with credible claims to painful and often prolonged litigation. Localities should recognize that police violence can ripple through heavily policed neighborhoods, causing widespread trauma and leaving many estranged from law enforcement. Localities should work with those in the impacted community to design safety and accountability measures on their terms. This might include measures like investing in health care or housing for those affected, or investing in alternatives to police like civilian traffic enforcement or mental health responders. And repair must avoid reliance on overly punitive carceral responses that drive unjust racial disparities and only further harm impacted communities.

In this way, localities will not only heal the damage that police violence causes; they will help to build communities that are safer for all.