Private Messaging Technologies and Free Speech

November 24, 2015

Author–Bill Mahone

Private conversations wpid-Photo-20140430222939Your blog in the aftermath of the Paris terrorist attack is very thought provoking.  Governmental efforts to prevent U.S. citizens from having private conversations – in the name of national security – can be seen as part of our nation’s ongoing debate over freedom of speech.  On university campuses there have been a series of instances where free speech has been limited in the name of cultural sensitivity.  At Yale, for instance, a group of administrators issued guidelines for appropriate (and inappropriate) Halloween costumes.  When one faculty member suggested that maybe students should be allowed to express themselves freely on Halloween, the faculty member was maligned by a crowd of Yale students.  The students – and some administrators – believed that it was better to curtail free speech than to risk an offensive Halloween costume.

The stakes in the fight against terrorism are certainly higher than the fight over Halloween costumes, but the tension surrounding free speech is the same.  Should the free speech of U.S. citizens be curtailed in the hope this will reduce the risk of terror attacks in the United States?  You point out that VaporStream®’s governance module permits corporations to have it both ways, but this doesn’t answer the question for other technologies, or for individuals who want to have private secure conversations with, for instance, a family member or a doctor.freedom_of_speech

Past experience tells us that if the government tries to restrict private communication technologies, two things will happen: first, the rights of law abiding citizens to have private conversations will be curtailed and, second, bad guys will figure out a way to get around the government restrictions.  The negative aspects of the government restrictions will outweigh the positive.  I do not believe there should be a blanket ban on technologies that enable private conversations.

In my mind, however, there is one exception to this.  Historically, law enforcement has had the ability, with judicial approval, to tap the phones of people who are suspected of involvement in illegal activities.  It seems to me that new private communications technologies should be built in such a way that some form of wire-tapping is possible.

About the Author

Mr. Mahone has been actively engaged in the private equity industry since 1988, when he left the law firm Willkie Farr & Gallagher to become the General Counsel of a private equity firm.  He currently serves as a Managing Director of a private equity firm and sits on the boards of a number of portfolio companies.  Mahone graduated from Stanford University with a Bachelor of Arts and obtained a Juris Doctor degree from Harvard Law School.

Further Reading

Paris Attacks and Encryption: The Debate Continues

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