While your statement is true, it doesn't really give any justification on targeted spying. That is, unless of course, we consider the desire to hide things to be a signal of being a bad actor. Thinking along those lines is a very slippery slope though. The erosion of freedoms is just another side-effect of policies and actions shaped by such thinking.
Pardon the bluntless, but it seems like an a priori conclusion that only people taking pains to hide their data/communications should be targeted. That is not because the vast majority of those people are innocent (they are) but because that is the only group that contains a subset that poses a real & present threat.
So, that ignores your slippery slope argument about personal liberties, which are totally valid. How do you balance national security and personal liberty in this case? That's the million dollar question.
Please let me know if you question my reasoning. I'm purely looking at it as a 2x2 matrix of (highly encrypts personal data, does not ...) x (seeks to harm people/nation interests, does not ...)
So only the people hiding their tracks that seek to harm are the ones to worry about. Those that don't hide their tracks are a lot less likely to be operationally successful</euphemism>.
However, I assume that the 99.95% of people that highly encrypt personal do not seek to harm anyone, and are collateral damage here.
Constitutional tradeoffs happen all over. Fire in a crowded theater, felons rights to vote, personal rights to own certain weapons, etc. This is another one that needs to be decided very carefully. But I think both sides have very valid concerns.
This is a quote by a judge in a trial that put someone in prison for passing out antiwar fliers. It's good to know the source of our philosophies.
edit: https://en.wikipedia.org/wiki/Schenck_v._United_States
When we accept that "shouting fire in a crowded theater" isn't protected speech, we're backing up an argument that was used to put someone in prison for non-violent anti-state speech. Not token prison either; 6 months. That is not a good thing, and not an acceptable baseline to guide us in the examination of other issues.
"we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death"
Back to the other quote: it is a classic and excellent demonstration of the one of the greatest tensions in US Constitution, the balance between individual rights and societal good. It doesn't require any context.
Perhaps I should have used the blunter formulation, also from Justice Holmes:
"The right to swing my fist ends where the other man's nose begins"
"National Security" is a fucking joke; there is nothing that needs to be balanced. Anyone interested in terrorizing others could (after driving across state lines if necessary) walk into a Walmart and walk out with a semi-automatic rifle, walk into the nearest mall, yell their grievances with the country and start shooting people.
We know that this sort of attack is possible in the US because plenty of lone-nutters have more or less done it already in the US. We know that terrorist organizations are receptive to this style of attack because they have carried out this style of attack in other countries (Mumbai in 2008 and Kenya in 2013 are obvious examples). Yet the two have yet to be combined in the US.
The only reason why this hasn't happened in the US is that, contrary to popular belief, there just simply are not many people interested in doing this sort of thing in the US. The notion that terrorists yearning to attack America are around every corner is a myth. Those people are a rounding error.
That would be valid if they could point to any noteworthy success. The fact they can't ["because national security"] pretty much guarantees the program contributes very little real value.
If they had anything to do with something important, say Osama's death, you think they wouldn't trumpet it out as "proof" it works?
I'd say their lack of evidence that it functions is more damning than anything. They can't exactly hide they are doing it post-Snowden. Their one chance to justify funding for new programs that aren't compromised is to say "LOOK HOW SUCCESSFUL WE ARE!!!!" in broad terms.
The fact they cannot do this, and thereby justify larger budgets to Congress, convinces me they know the benefits are negligible.
I really would say that it's a question of risk aversion & utitility. Even targetting a whole class of people the odds are probably astronomical of finding someone planning harm (1M:1? more than that?). To me it comes down to the negative utility of privacy invasion * the number of people targeted ??? the probability of detecting & thwarting the one malactor, where ??? is an inequality.
Maybe it's good we have risk averse and non risk averse groups, that the balance of power between those groups can change over time as necessary.
