I suppose it was just a matter of time before a Trump administration official would suggest that the use of public key encryption—protected by the First Amendment—to monitor federal agent misconduct was itself allegedly a crime.
NBC News reported on January 27 that on the Benny Johnson podcast, FBI Director Kash Patel announced that the FBI was investigating the use by Minneapolis residents of the Signal encrypted messaging app as a means of allegedly impeding ICE immigration enforcement operations. This is another epic constitutional and legal fail by Patel.
Here are some very inconvenient historical and legal facts that invalidate the legitimacy of any such “investigation” of Minneapolis anti-ICE protesters’ use of Signal or any other publicly available encryption technology:
- As a National Security Agency (NSA) history notes, many of the Founders—including but not limited to Jefferson and Madison—regularly used “codes and ciphers” (the term of art for encryption back in their day) before, during, and after the Revolution to communicate with each other. The use of encryption to keep government authorities from getting access to our private communications is literally as American as apple pie.
- Nearly 30 years ago, the Ninth Circuit Court of Appeals ruled in a landmark case that “Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption’s bounty. Viewed from this perspective, the government’s efforts to retard progress in cryptography may implicate the Fourth Amendment, as well as the right to speak anonymously.”
That decision is why we have the phrase “code is speech,” and why apps like Signal and their use by citizens are protected by the First Amendment. And the use of that digitally encrypted speech to coordinate peaceful protest activity (like monitoring ICE for acts of brutality) is likewise First Amendment-protected activity.
The actual criminal conduct that should be investigated is the deaths of Renee Good and Alex Pretti, who likewise were engaged in First Amendment-protected activities at the moment they were fatally shot in broad daylight by ICE personnel.
If Patel and his boss, Attorney General Pam Bondi, were actually fulfilling their constitutional oaths, they’d be doing exactly that in full cooperation with Minnesota law enforcement authorities. That they are actively stiff-arming those state authorities tells us all we need to know about the political illegitimacy of Trump’s Justice Department.