It’s rare when an idea, or piece of evidence, comes along that is so impressive, it forces you to rethink your entire model of the world. The recently released Feinstein-Burr encryption bill has done just that.

It has been described as “technically illiterate”, “chilling”, “ridiculous”, “scary”, and “dangerous“. Not only are the issues with the bill fairly obvious to anyone with a cursory understanding of encryption, the problems are of such magnitude that it thwarts any attempt to understand the Senators’ actions. Let’s look at the effects of the hypothetical law.

The biggest issue is that this bill will significantly damage the United States’ national security. We live in a highly insecure world where cyberattacks, both foreign and domestic, are omnipresent. The Feinstein-Burr bill would fundamentally reduce the security of all technology infrastructure in the country. Jonathan Zdziarski in a blog linked above, gives some details:

Due to the backdooring of encryption that this legislation implies, American electronics will be dangerously unsafe compared to foreign versions of the same product. Diplomats, CEOs, scientists, researchers, politicians, and government employees are just a few of the people whose data will be targeted by foreign governments and hackers both while traveling, but also whenever they’re connected to a network.

That’s awful, and even if you have the most America-first, protect-American-lives mentality, weakening American encryption is the worst thing you could do; it literally endangers American lives.

I think there’s also a strong case to be made that this will do very little to combat terrorism. Unbreakable, strong encryption is widely available on the internet for free, forever; if bad people want to use it, they will. Moreover, terrorism, as awful as it is, is relatively rare; Americans are about a 1000x more likely to die non-terrorism related homicide. And many more “common” homicides occur due to heat-of-the-moment arguments, which means there would be no encrypted messages detailing conspiracies. All this bill does is remove the ability of average, non-technically inclined Americans to secure their data.

And the people whose data will be most at risk will be those consumers who are less educated or less technically adept. Better informed consumers might have the ability to install foreign encryption software on their phone to keep their data safe, but most uninformed consumers just use default settings. Thus, criminals who try and commit identity theft will greatly benefit from this legislation; they wouldn’t usually bother targeting knowledgeable users anyway, and with security stripped away from phones, it will be much easier to steal data from susceptible users. The people most in need of help to protect their data will be disproportionately harmed by this legislation.

On the other hand, most companies are not uniformed users. They have IT departments who understand the value of encrypting their data, and they will continue to purchase strong security software, even if it is no longer sold in the United States. Foreign produced software works just as well. Banning strong encryption will debilitate the American technology sector, one of the biggest and most important parts of the economy. This will cost Americans jobs and diminish America’s influence on the future of the world, as technological innovation moves overseas. But this isn’t just bad for Americans; it’s not easy to simply move an entire company or product overseas. There are huge capital investments these companies have made that will not be available in other countries immediately, if ever, and this will set back the global technology industry billions if not trillions of dollars.

So this really begs the question of why Senators Dianne Feinstein and Richard Burr introduced this bill; given their stated obsession with national security, and given the horrific effect this bill would have on American national security, there’s no good way to resolve their stated beliefs with their actions. Here are a couple theories to explain their behavior, and some discussion as to why each respective theory is unsatisfying.

The Senators are actually foreign spies purposefully trying to weaken American national security. Obviously, if this theory is true, it’s self-evidently very bad that our elected officials not only don’t represent us, but actually represent foreign governments likely trying to harm Americans. Sure it’s quite unlikely since it’s very difficult to become a U.S. Senator at all, and no spy agency would send agents in with a plan to become a U.S. Senator. Whether they were turned into foreign agents after being elected, I really can only speculate. But it strikes me as improbable. Nonetheless, it is true that this legislation is exactly what foreign security agencies would want to introduce to make the United States more vulnerable. I was curious, so I checked the constitutional definition of treason as well as the Espionage Act, but it seems that you need to literally give secrets to other people, not just make it easier for them to obtain. But there is that one case where a high ranking official is in trouble for storing documents insecurely…

They’re power hungry politicians. The idea of the Senators being foreign spies is bit far-fetched. But what know for sure is that they are politicians, which means they chose a career path that would give them more power to change things. Maybe Burr and Feinstein are sick of technology companies telling the FBI that they can’t assist their investigations, and they wanted to put them in their place. If this theory is true, it’s pretty self-evidently evil; people in power using their power indiscriminately to harm citizens is the exact problem Thomas Jefferson identified in the Declaration of Independence. Of course, it’s not usually a big problem, because James Madison helped construct a whole host of ways to check the power of government. Of course, the most important check for our situation is that senators are voted in by the people. So as long as people know about this dumb bill, they’ll kick these guys out…right?

Hanlon’s Razor (origin disputed) states that one should “never attribute to malice that which is adequately explained by stupidity.” This theory would mean that two sitting, highly experienced U.S. Senators are too stupid to realize the ill effects this will have on national and economic security. Obviously, congress has to make laws in areas that its members are not always familiar with…but Burr and Feinstein are the chair and vice chair, respectively, of the Intelligence Committee. If anyone knows about intelligence, they do. And Feinstein is even on the Judiciary Subcomittee on Technology, Privacy, and the Law! If even these people are too stupid to understand what the effects of their own policies are, we might as well stop sending representatives to a legislature at all and just have run-of-the-mill uneducated voters pass everything directly through referendum. Sure, they’d have no idea what they’re doing, but apparently neither do Senators!

What I think is most likely, and most terrifying, is that American Democracy incentivizes members of Congress to make bad policy if it’s politically beneficial. With all the aides and staff Senators have, plus the amount of pressure they receive from outside groups, it seems unlikely they never heard about the bad effects of the bill. Yet, they did it anyway. Given they don’t work for law enforcement, there is no Frank Underwood endgame for passing this bill; banning encryption doesn’t directly allow Burr and Feinstein to look at their political enemies’ phones (…probably), just criminals and the police. So then maybe their incentive was to appear tough on crime and terrorism, consequences be damned. Richard Burr is in a reelection year in North Carolina, so let’s look at the effect this horrible bill has had on his chances to win according to Predictit.org:

As you can see, the bill had very little effect on his perceived chances. Now, it could be that voters have already factored in Senator Burr’s position on destroying defending American national security, and he needed to introduce this legislation to maintain his position. But it looks identical to a situation where North Carolina voters couldn’t care less about Senator Burr’s position on encryption, and his introduction of legislation consequently had no effect on his reelection chances. If it’s the former, then we are in serious trouble because our legislative representatives are incentivized to make horrible policies because voters aren’t well informed. If it’s the latter, then we have to dismiss this explanation and go back to one of the other three.

Whatever the explanation is, it reflects poorly on how the government constructs policy, and it reflects poorly on American Democracy. Moreover, assuming any of those discussed theories are true, they imply massive issues that will be difficult or impossible to solve. Reforming democracy as many progressives would like, through campaign finance, wouldn’t even address any of these issues; it is the technology corporations and privacy NGOs which have been advocating for more privacy and making unbreakable encryption more accessible, while law enforcement and other government agencies have been advocating for less security. But as far as I can tell, even they haven’t demanded anything like this bill. Thus, more campaign spending by private groups would help, not hinder good policy.

No matter how you look at it, this bill indicates a big failure for democratic government and illustrates the dangers discretionary state power.

Photo credit: Caïn venant de tuer son frère Abel, by Henry Vidal in Tuileries Garden in Paris, France, photo by Alex E. Proimos, licensed under CC-BY-2.0.