District Attorneys Use Spying as Cover To Demand a Law Enforcement Back Door

In response to a question Senate Intelligence Committee Chair Richard Burr posed during his committee’s Global Threat hearing yesterday, Jim Comey admitted that “going dark” is “overwhelmingly … a problem that local law enforcement sees” as they try to prosecute even things as mundane as a car accident.

Burr: Can you, for the American people, set a percentage of how much of that is terrorism and how much of that fear is law enforcement and prosecutions that take place in every town in America every day?

Comey: Yeah I’d say this problem we call going dark, which as Director Clapper mentioned, is the growing use of encryption, both to lock devices when they sit there and to cover communications as they move over fiber optic cables is actually overwhelmingly affecting law enforcement. Because it affects cops and prosecutors and sheriffs and detectives trying to make murder cases, car accident cases, kidnapping cases, drug cases. It has an impact on our national security work, but overwhelmingly this is a problem that local law enforcement sees.

Much later in the hearing Burr — whose committee oversees the intelligence but not the law enforcement function of FBI, which functions are overseen by the Senate Judiciary Committee — returned to the issue of encryption. Indeed, he seemed to back Comey’s point — that local law enforcement is facing a bigger problem with encryption than intelligence agencies — by describing District Attorneys from big cities and small towns complaining to him about encryption.

I’ve had more District Attorneys come to me that I have the individuals at this table. The District Attorneys have come to me because they’re beginning to get to a situation where they can’t prosecute cases. This is town by town, city by city, county by county, and state by state. And it ranges from Cy Vance in New York to a rural town of 2,000 in North Carolina.

Of course, the needs and concerns of these District Attorneys are the Senate Judiciary Committee’s job to oversee, not Burr’s. But he managed to make it his issue by calling those local law enforcement officials “those who complete the complement of our intelligence community” in promising to take up the issue (though he did make clear he was not speaking for the committee in his determination on the issue).

One of the responsibilities of this committee is to make sure that those of you at at the table and those that comp — complete the complement of our intelligence community have the tools through how we authorize that you need. [sic]

Burr raised ISIS wannabes and earlier in the hearing Comey revealed the FBI still hadn’t been able to crack one of a number of phones owned by the perpetrators of the San Bernardino attack. And it is important for the FBI to understand whether the San Bernardino attack was directed by people in Saudi Arabia or Pakistan that Tashfeen Malik associated with before coming to this country planning to engage in Jihad.

But only an hour before Jim Comey got done explaining that the real urgency here is to investigate drug cases and car accident cases, not that terrorist attack.

The balance between security, intelligence collection, and law enforcement is going to look different if you’re weighing drug investigations against the personal privacy of millions than if you’re discussing terrorist communications, largely behind closed doors.

Yet Richard Burr is not above pretending this about terrorism when it’s really about local law enforcement.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. Cujo359 says:

    Car accidents? Seriously? What sort of conspiracies go on over the Internet or smart phones that hinder car accident investigations?
    *
    All this just begs the question of what we all did before we had computers and the Internet.
    *
    Meanwhile,I think if I were a member of the intel community, I’d be a lot more worried about there being a back door that I can’t tell has been opened by someone else than I would be about people conspiring via encryption I couldn’t break. Well, maybe not, but both are worrisome possibilities if we ever have to face a really dangerous enemy.

    • Swami says:

      Many smartphones have motion sensors, and some may retain data for a bit. So, theoretically, in an accident investigation the po-po could pull the sensor data to figure out your speed, direction etc. Which is hard to do if the phone data are encrypted.

      Yes, it’s a stretch but you asked…

  2. Giles Byles says:

     
    Authorities need to get a WARRANT & serve it on the suspect.  Leave the phone manufacturer out of it.  A suspected malefactor can legally & justifiably be forced to divulge the password to her phone.  A phone manufacturer is not the malefactor.
     
    This drama over the San B’dino phone they supposedly can’t crack & the two dead terr’rists they couldn’t keep track of attempts to blame encryption for FBI’s failure.  Encryption didn’t have anything to do with it.  The suspects are dead.  No one left to serve the warrant on.  Go try something else.
     
    Couldn’t the NSA & its Bluffdale facility reconstruct everything that happened?  Upstreaming doesn’t work, does it.  $3 billion & it can’t do jack shyte.

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