Say That Again
The DOJ's anti-encryption summit went off without a hitch. And why wouldn't it? No one who had anything good to say about encryption was invited. The only speaker without a history of criticizing encryption was John Walsh of "America's Most Wanted," who detailed the kidnapping of his son -- an event that took place long before encryption was viewed as an impediment to law enforcement.
Using a bit of the FOSTA playbook, but skewing it younger to facilitate appeals to emotion, the "summit" attempted to discuss the "creation" of "lawless spaces" resulting from end-to-end encryption. Facebook was front and center as the recent recipient of a letter from Attorney General William Barr, asking it to ditch its plans to encrypt Messenger communications.
Barr (who's already made his feelings about encryption clear) was joined by Deputy AG Jeffrey Rosen, FBI Director Chris Wray, UK Home Secretary Priti Patel, and Australia's Minister of Home Affairs Peter Dutton. No one representing the tech industry was included. Nor were any encryption experts. This was a preach-to-the-converted type of event and the speakers all made the most of it.
FBI Director Chris Wray offered his unsurprising take on encrypted communications: he's against it. Not that his opinion should be considered in any way an "expert" opinion. He runs an agency that can't even correctly count the number of encrypted devices it has in its possession. And it's the same agency where officials did everything they could to avoid unlocking a seized phone in a mass shooting case in hopes of securing favorable court precedent. Wray frequently presents the hardest skew on the issue (at least at the federal level), and his comments at the summit were no exception.
[I]f we don’t confront these real-life horrors happening to real people, if we don’t take action and do something soon to address the lawful access problem, it will be too late and we’ll lose the ability to find those kids who need to be rescued. We’re going to lose the ability to find the bad guys who need to be arrested and stopped. And we’re going to lose the ability to keep the most vulnerable people we serve safe from harm. We just cannot let that happen.
Technology has made life much easier for the good guy—there’s no doubt. But it’s also made life much easier for a wide range of bad guys—including international and domestic terrorists, hackers, opioid traffickers, and child predators. Like other criminals, child predators routinely rely on encrypted phones and laptops to store explicit photographs and exchange illegal media, contact victims, and coordinate with co-conspirators over encrypted messaging platforms.
These devices and platforms have become spaces where vital rules—against soliciting child abuse, against trading in and feeding that abuse, against threatening abuse victims struggling to make a normal life—can no longer effectively be applied.
The key word here is "effectively." Wray wants immediate access in exchange for a warrant. While end-to-end encryption may make it harder to obtain the content of communications from service providers, it does not make it impossible. There are vendors offering tools that can bypass phone encryption to access communication contents. Suspects have been known to volunteer passwords. More than one court has found that the application of biometric features to unlock devices does not violate the Fifth Amendment. Any number of third parties hold data that can give investigators clues about message content and link suspects with conspirators.
Going directly through Facebook -- and Facebook is the unspoken target of this "summit", thanks to its announcement of end-to-end encryption for Messenger -- is just not going to be a very useful option. Wray believes encryption shouldn't be able to defeat a warrant. But that short-sighted view ignores the fact that not every warrant results in the securing of evidence… or enough evidence to secure a guilty verdict.
The issue here is Facebook's plans for Messenger. According to stats mentioned in Barr's letter (and comments delivered by others), 70% of Facebook's 16 million child exploitation tips came from this service. Once the encryption is applied, even Facebook won't be able to see the contents of these communications. That's what the FBI, DOJ, and overseas government officials are hoping to prevent.
It's a legitimate concern, but it's being discussed with a lot of illegitimate arguments. Wray tries to pretend it's everyone else being disingenuous while he boldly speaks truth to tech power. But even this assertion is contradicted by Wray's statements.
I’m well aware that encryption is a provocative subject for some. Although I will tell you, I get more than a little frustrated when people suggest that we’re trying to weaken encryption—or weaken cybersecurity more broadly. We’re doing no such thing. And dispensing with straw men would be a big step forward in this discussion. Cybersecurity is a central part of the FBI’s mission. It’s one part of the broader safety net we try to provide the American people: not only safe data, safe personal information, but also safe communities, safe schools.
We also have no interest in any “back door,” another straw man. We—the FBI, our state and local partners—we go through the front door. With a warrant, from a neutral judge, only after we’ve met the requirements of the Fourth Amendment. We’ve got to look at the concerns here more broadly, taking into account the American public’s interest in the security and safety of our society, and our way of life. That’s important because this is an issue that’s getting worse and worse all the time.
Actually, no. It's still really safe and secure in the United States. Our "way of life" is under no greater threat in an era of increased encryption use than it was before this became the FBI's pet issue. In fact, we're safer today in terms of crime rates and terrorist activity than we've been in more than two decades.
Wray has built his anti-encryption side hustle on a pile of straw men. It's pretty rich to see him arguing no one else should have the privilege to argue their points as disingenuously as he has.
People want safety. People want security. These are inextricably intertwined, but Wray thinks it's possible to separate one from the other without a net loss in safety. And he can't even be honest about how he plans to do it. No one on this panel is willing to call the back doors they want "back doors." No, it's always something else. If the front door is the user's access to their communications, anyone coming in through another entrance is likely going to be viewed as using the back door. If the FBI prefers, we could just call it "using the bedroom window." It doesn't really matter what it's called when it's still access to encrypted communications that's achieved by going through anyone else but the end user.
Wray says everyone else -- everyone who doesn't immediately agree the security trade-off the FBI is pitching is worth it -- is wrong. We're allying ourselves with the most heinous criminals and actively thwarting law enforcement. We're all Wray's straw men now.
So to those out there who are resisting the need for lawful access, I would ask: What’s your solution? How do you propose to ensure that the hardworking men and women of law enforcement, sworn to protect you and your families, actually maintain lawful access to the information they need to do their jobs? What will you say to victims who are denied justice—or left unrescued—in the name of some incremental amount of additional data security?
Why limit your appeal to emotion when you can also appeal to authority? That's the rhetoric Wray is delivering to people who think he's right and will never push back against his oversimplifications, even as he decries the oversimplifications of others. What a train wreck.
It's not an "incremental amount." It's either secure or it isn't. It's not an incremental issue. I would say to the imagined crowd of "hardworking law enforcement" officers that demanding people relinquish their security just to make it easier for the government to access private communications is a bullshit deal. I'm sure Wray knows this. He just seems not to care.
Filed Under: chris wray, doj, encryption, fbi, going dark