At a 10 AM Senate Homeland Security hearing on October 8, Jim Comey read prepared testimony that reiterated his claim that encrypted devices are causing FBI problems, but stated that the Administration is not seeking legislation to do anything about it.
Unfortunately, changing forms of Internet communication and the use of encryption are posing real challenges to the FBI’s ability to fulfill its public safety and national security missions.. This real and growing gap, to which the FBI refers as “Going Dark,” is an area of continuing focus for the FBI; we believe it must be addressed given the resulting risks are grave both in both traditional criminal matters as well as in national security matters. The United States Government is actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services. However, the Administration is not seeking legislation at this time.
That statement got the Administration a lot of good press, with the WaPo declaring “Obama administration opts not to force firms to decrypt data — for now” and the NYT, even after this ruling had been unsealed, reporting, “Obama Won’t Seek Access to Encrypted User Data.” In the actual hearing, Comey was more clear that he did intend to keep asking providers for data and that the government was having “increasingly productive conversations with industry” to get them to do so, inspired in part by government claims about the ISIS threat. Part of that cooperation, per Comey, was “how can we get you to comply with a court order.”
Sometime that same day, on October 8, government lawyers submitted a request to a federal magistrate in Brooklyn to obligate Apple to help unlock a device law enforcement had been unable to unlock on their own.
In a sealed application filed on October 8, 2015, the government asks the court to issue an order pursuant to the All Writs Act, 28 U.S.C. § 1651, directing Apple, Inc. (“Apple”) to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass that lock. As a result, they cannot gain access to any data stored on the device notwithstanding the authority to do so conferred by this court’s warrant.
The next day the judge, James Orenstein, deferred ruling on whether the All Writs Act is applicable in this case (though he did suggest it probably wasn’t) pending briefing from Apple on how burdensome it would find the request. Orenstein released his memo after giving the government opportunity to review his order.
This is not the first time the government has tried to use the All Writs Act to force providers (Apple, in at least one of the known cases) to help unlock a phone. EFF described two instances from last year in a December post. It also reviewed a 2005 ruling where Orenstein refused to allow the government to use All Writs Act to force telecoms to provide cell site location in real time.
Of course, as Lawfare seems to suggest, it has taken a decade for the decision Orenstein made in that earlier ruling — that the government needs a warrant to get cell tracking from a phone — to finally get fully developed into a debate and some Supreme Court (US v. Jones) and circuit rulings. That’s because in the interim, plenty of magistrates continued to compel providers to give such information to the government.
It’s quite possible the same is true here: that this is not just the third attempt to get a court to issue an All Writs Act to get Apple to provide data, but that instead, a number of magistrates who are more compliant with government wishes have agreed to do so as well. Indeed, as Orenstein noted, that’s a suggestion the government made in its application when it claimed “in other cases, courts have ordered Apple to assist in effectuating search warrants under the authority of the All Writs Act [and that] Apple has complied with such orders.”
What Orenstein did, then, was to make it clear this continues to go on, that even as Jim Comey and others were making public claims (and getting public acclaim) for not seeking legislation that would compel production of encrypted data the government — including, presumably, the FBI — was seeking court orders that would compel production secretly. The key rhetorical move in Orenstein’s order came when Orenstein compared Comey’s public statements claiming to support debate on this issue to the attempt to claim the government had to rely on the All Writs Act because no law existed. In a long footnote, Orenstein quoted from Comey’s Lawfare post,
Democracies resolve such tensions through robust debate …. It may be that, as a people, we decide the benefits here outweigh the costs and that there is no sensible, technically feasible way to optimize privacy and safety in this particular context, or that public safety folks will be able to do their job well enough in a world of universal strong encryption. Those are decisions Americans should make, but I think part of my job is [to] make sure the debate is informed by a reasonable understanding of the costs.
Then Orenstein pointed out that relying on the All Writs Act would undercut precisely the democratic debate Comey claimed to want to have.
Director Comey’s view about how such policy matters should be resolved is in tension, if not entirely at odds, with the robust application of the All Writs Act the government now advocates. Even if CALEA and the Congressional determination not to mandate “back door” access for law enforcement to encrypted devices does not foreclose reliance on the All Writs Act to grant the instant motion, using an aggressive interpretation of that statute’s scope to short-circuit public debate on this controversy seems fundamentally inconsistent with the proposition that such important policy issues should be determined in the first instance by the legislative branch after public debate – as opposed to having them decided by the judiciary in sealed, ex parte proceedings.
To be fair, even as the government was submitting its secret request to Orenstein, Comey was disavowing his former pro-democratic stance, and instead making it clear the government would try to find some other way to get orders forcing providers to comply.
But, given Orenstein’s invitation for Apple to lay out how onerous this is on it, Comey might get the democratic debate he once embraced.
Update: When I wrote this in the middle of the night I misspelled Judge Orenstein’s name. My apologies!
The WaPo has an update on the Administration’s debate about whether to push for legislation for back doors. It reports that the Obama Administration decided to punt — and not ask for legislation right now while continuing efforts to cajole companies to back door their own products. WaPo even provided the date that decision was made: October 1.
“The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry,” FBI Director James Comey said at a Senate hearing Thursday of the Homeland Security and Governmental Affairs Committee.
The decision, which essentially maintains the status quo, underscores the bind the administration is in — between resolving competing pressures to help law enforcement and protecting consumer privacy.
The decision was made at a Cabinet meeting Oct. 1.
“As the president has said, the United States will work to ensure that malicious actors can be held to account – without weakening our commitment to strong encryption,” National Security Council spokesman Mark Stroh said. “As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services.”
Apple CEO Tim Cook said he doesn’t think we will hear the U.S. National Security Agency asking for a back door into our iPhones, at least not any more. In an interview on NPR’s All Things Consideredon Thursday, Mr. Cook implied that even the FBI is coming around on the need for end-user encryption.
The intelligence community has asked for a back door. They want access into the communications that are going through Apple’s devices. No?
Tim Cook: I don’t think you will hear the [National Security Agency] asking for a back door.
Robert Siegel: The FBI?
Tim Cook: There have been different conversations with the FBI, I think, over time. And I’ve read in the newspapers myself. But my own view is everyone’s coming around to some core tenets. And those core tenets are that encryption is a must in today’s world. And I think everyone is coming around also to recognizing that any back door means a back door for bad guys as well as good guys. And so a back door is a nonstarter. It means we’re all not safe.
When I first read this interview, I was struck by Cook’s certainty about the NSA, compared to his uncertainty about FBI. I wondered at the time whether that certainty meant that the rumored FISC request for a back door was ultimately rejected, which would close off the possibility for NSA for the moment(that would affect FBI, too, but only part of FBI’s requests).
Given the coincidence of these two events — Cook’s stated certainty and the cabinet decision not to pursue back doors right now — I’m all the more curious.
Has FISC secretly told the government it can’t force Apple to back door its products?
Periodically, Jim Comey invites a group of select journalists in for lunch and eats them alive with his charisma and unsubstantiated claims. The first I noticed came when Comey made some false claims about National Security Letters, without a single journalist correcting him. More recently, Comey claimed FBI had arrested 10 people with ties to ISIS, only two of whom have every publicly appeared.
In this week’s edition, Comey got passionate about a claimed spike in crime.
And in unusually passionate remarks, the FBI director said he was “very concerned about what’s going on now with violent crime and murder rates across the country,” in cities as disparate as Omaha and Milwaukee.
At least in this instance, journalists are getting less credulous, because most (though not CNN) reported that in fact the crime stats released this week show a decline in crime, not a spike, even while they reported that violent crime in “many” cities has spiked.
Newly released federal data suggest a slight dip in violence across the nation in 2014. But Comey said those numbers may not be capturing what’s happening on the ground today. He’s been hearing similar concerns from police chiefs, he said.
Earlier this week, the FBI released data showing violent crime dropped slightly in 2014, but many big city police departments have reported significant jumps in shootings this year compared with last year.
In 2014, the number [of murders in NYC] had dropped to 328 — the lowest number of murders since the New York City Police Department began collecting statistics in 1963.)
None I saw, however, pointed out that the claim of a spike in “many” cities stems from a persistent propaganda effort that has been debunked as cherry-picking. Yes, there are a few cities with alarming spikes in violence, but they should be examined as cities, not as a trend that the FBI’s own data shows is moving in the opposite direction.
In his comments, Comey didn’t endorse the Ferguson effect. But he did say we need to move slowly on criminal justice reform both because of this alleged spike and because crime has gone down (!?!). Still from the HuffPo:
Comey said he didn’t know whether protests against police violence have made it harder for police to do their jobs, a theory that has been dubbed the “Ferguson effect.” “I’m not discounting it, but I just don’t know,” he said, adding that he was “focused on it, trying to figure it out.”
“Some have said police officers aren’t getting out of their cars and talking to gang-bangers on street corners anymore, but I don’t know,” he said. “What I do know is that a whole lot of people are dying. They are, according to the chiefs, overwhelmingly people of color, and we’ve got to care about that.”
The spike in crime made him want to be “thoughtful” on criminal justice reform, Comey added.
“My strong sense is that a significant portion of the change in our world since I was a prosecutor in New York in 1987 is due to law enforcement, but I’m sure there are lots of other things [going on],” he said.
“I just want to make sure that as we reform — first of all, we’re grateful that we actually have the space and time to think and talk about sentencing better, rehabilitating better, and [that] is a product of hard work over the past 25 years — but as we do it, are very, very thoughtful about where we used to be and how we got from that point to here,” Comey said.
As with encryption back doors, the data is not there (on that issue, DOJ simply doesn’t collect data on how often encryption prevents it from accessing data). But that’s not going to stop him from cautioning against criminal justice reform.
Apple recently released its latest transparency report for the period ending June 30, 2015. By comparing the numbers for two categories with previous reports (2H 2013, 1H 2014, 2H 2014) we can get some sense of how badly Apple’s move to encrypt data has really thwarted law enforcement.
Thus far, the numbers show that “going dark” may be a problem, but nowhere near as big of one as, say, NY’s DA Cy Vance claims.
The easier numbers to understand are the national security orders, presented in the mandated bands.
Since the iPhone 6 was introduced in September 2014, the numbers for orders received have gone up — one band in the second half of 2014, and two more bands in the first half of this year. Curiously, the number of accounts affected haven’t gone up that much, possibly only tens or a hundred more accounts. And Apple still gets nowhere near the magnitude of requests Yahoo does, which number over 42,000.
Equally curiously, in the last period, Apple clearly received more NatSec orders than accounts affected, which is the reverse of what other companies show (before Apple had appeared close to one-to-one). One thing that might explain this is the quarterly renewal of Pen Register orders for metadata of US persons (which might be counted as 4 requests for each account affected).
In other words, clearly NatSec requests have gone up, proportionally significantly, though Apple remains a tiny target for NatSec requests compared to the bigger PRISM participants.
The law enforcement account requests are harder to understand.
Note, Apple distinguishes between device requests, which are often users seeking help with a stolen iPhone, and account requests, which are requests for either metadata or content associated with an account (and could even include purchase records). The latter are the ones that represent law enforcement trying to get data to investigate a user, and that what I’ve laid out the latter data here [note, I fully expect to have made some data errors here, and apologize in advance — please let me know what you see!!].
Here, too, Apple has seen a significant increase, of 23%, over the requests it got in the second half of last year. Though, note, the iPhone 6 introduction would not be the only thing that would affect this: so would, probably, the June 2014 Riley Supreme Court decision, which required law enforcement to get a warrant to access cell phones, would also lead law enforcement to ask Apple for data more often.
Interestingly, however, there were fewer accounts implicated in the requests in the last half of the year, suggesting that for some reason law enforcement was submitting requests with a slew of accounts listed for each request. Whereas last year, LE submitted an average of over 6.5 accounts per request, this year they have submitted fewer than 3 accounts per request. This may reflect LE was submitting more identifiers from the same account — who knows?
The percentage of requests where content was obtained has gone up too, from 16% in 2013 to 24% in the first period including the iPhone 6 to 30% last quarter. Indeed, over half the period-on-period increase this period may stem from an increase in content requests (that is, the 107 more requests where content was obtained in the first half of the year, which was a period in which Apple got 183 more requests overall). Still, that number, 107 more successful requests for content this year than the second half of last year, seems totally disproportionate to NYC DA Cy Vance’s claim that the NYPD was unable to access the content in 74 iPhones since the iPhone 6 was established (though note, that might represent 1 request for content from 74 iPhones).
Perhaps the most interesting numbers to compare are the number of times Apple objected (because the agency didn’t have the right kind of legal process or a signed document) and the number of times Apple disclosed no data (which would include all those times Apple successfully objected — which appears to include all those in the first number — as well as those times Apple didn’t have the account, as well as times Apple was unable to hand over the data because a user hadn’t used default iCloud storage for messages. [Update, to put this more simply, the way to find the possible number of requests where encryption prevented Apple from sharing information is to subtract the Apple objected number from the no data number.] In the second half of 2013, Apple did not disclose any data 28.5% of the time. In the first half of this year, Apple did not disclose any data in just 18.6% of requests. Again, there are a lot of reasons why Apple would not turn over any data at all. But in general, cops are getting data more of the time when they give Apple requests than they were a few years ago.
More importantly, for just 65 cases in the first half of this year and 80 cases in the second half of last year did Apple not turn over any data for a request for reasons other than some kind of legal objection — and those numbers are both lower than the two half years preceding them. Each of those requests might represent hundreds of phones, but overall it’s a tiny number. So tiny it’s tough to understand where the NYPD’s 74 locked iPhones (unless they did request data and Apple actually had it).
There’s one more place where unavailable encrypted data might show up in these numbers: in the number of specific accounts for which data was disclosed. But as a percentage, what happened this year is not that different from what happened in 2013. In the second half of 2013, Apple provided some data (and this can be content or metadata) for 57.6% of the accounts specified in requests. In the first half of this year, Apple provided some data for 51.6% of the accounts specified in requests — not that huge a difference. And of course, the second half of last year, which may be an outlier, but during much of which the iPhone 6 was out, Apple provided data for 88.5% of the accounts for which LE asked for data.
Overall, it’s very hard to see where the FBI and other law enforcement agencies are going dark — though they are having to ask Apple for content more often (which I consider a good thing).
Update: In talking to EFF’s Nate Cardozo about Apple’s most recent report, we agreed that Apple’s new category for Emergency Requests may be one other place where iPhone data is handed over (it doesn’t exist in the reports for previous half year periods). Apple defines emergency content this way:
Table 3 shows all the emergency and/or exigent requests that we have received globally. Pursuant to 18 U.S.C. §§ 2702(b)(8) and 2702(c)(4) Apple may voluntarily disclose information, including contents of communications and customer records, to a federal, state, or local governmental entity if Apple believes in good faith that an emergency involving imminent danger of death or serious physical injury to any person requires such disclosure without delay. The number of emergency requests that Apple deemed to be exigent and responded to is detailed in Table 3.
Given the scale of Apple’s other requests, though not in the scale of cloud requests comparatively, these are significant numbers, especially for the US (107) and UK (98).
Of significant note, Apple may give out content under emergency requests.
This is more likely to be a post-Riley response than an encryption response, but still notable given the number.
Ben Wittes looks at the WaPo article and accompanying National Security Council Draft Options paper on how the White House should respond to FBI’s campaign against encryption and declares that “Industry has already won.”
[T]he document lays out three options for the administration—three options that notably do not include seeking legislation on encryption.
- “Option 1: Disavow Legislation and Other Compulsory Actions”;
- “Option 2: Defer on Legislation and Other Compulsory Actions”; and
- “Option 3: Remain Undecided on Legislation or Other Compulsory Actions.”
In all honesty, it probably doesn’t matter all that much which of these options Obama chooses. If these are the choices on the table, industry has already won.
What’s most fascinating about the white paper is that it lays bare how the NSC itself sees this issue — and they don’t see it like Wittes does, nor in the way the majority of people clamoring for back doors have presented it. As the NSC defines the issue, this is not “industry” versus law enforcement. For each assessed scenario, NSC measures the impact on:
Arguably, there’s a fifth category for each scenario — foreign relations — that shows up in analysis of reaction by stakeholders that weighs the interests of foreign governments, including allies that want back doors (UK, France, Netherlands), allies that don’t (Germany and Estonia), and adversaries like Russia and China that want back doors to enable repression (and, surely, law enforcement, but the analysis doesn’t consider this).
That, then, is the real network of interests on this issue and not — as Wittes, Sheldon Whitehouse, and many though not all defenders of back doors have caricatured — simply hippies and Apple versus Those Who Keep Us Safe.
NSC not only judges the market demand for encryption — and foreign insistence that US products not appear to be captive to America’s national security state — to be real, but recognizes that those demands underlie US economic competitiveness generally.
And, as a number of people point out, the NSC readily admits that encryption helps cybersecurity. As the white paper explains,
Pro-encryption statements from the government could also encourage broader use of encryption, which would also benefit global cybersecurity. Further, because any new access point to encrypted data increases risk, eschewing mandated technical changes ensures the greatest technical security. At the same time, the increased use of encryption could stymie law enforcement’s ability to investigate and prosecute cybercriminals, though the extent of this threat over any other option is unclear as sophisticated criminals will use inaccessible encryption.
Shorter the NSC: If encryption is outlawed, only the sophisticated cyber-outlaws will have encryption.
This is the discussion we have not been having, as Jim Comey repeatedly talks in terms of Bad Guys and Good Guys, the complex trade-offs that are far more than “safety versus privacy.”
What’s stunning, however, is that NSC — an NSC that was already in the thick of responding to the OPM hack when this paper was drafted in July — sees cybersecurity as a separate category from public safety and national security. Since 2013, the Intelligence Community has judged that cybersecurity is a bigger threat than terrorism (though I’m not sure if the IC has revised that priority given ISIS’ rise). Yet the NSC still thinks of this as a separate issue from public safety and national security (to say nothing of the fact that NSC doesn’t consider the crime that encryption would prevent, such as smart phone theft).
I’m not surprised that NSC considers these different categories, mind you. Cybersecurity failures are still considered (with the sole exception of Katherine Archuleta, who was forced to resign as OPM head after the hack) politically free, such that men like John Brennan (when he was Homeland Security Czar on NSC) and Keith Alexander can have, by their own admission, completely failed to keep us safe from cyberattack without being considered failures themselves (and without it impacting Brennan’s perceived fitness to be CIA Director).
The political free ride cybersecurity failures get is a problem given the other reason that Wittes’ claim that “industry has already won” is wrong. WaPo reports that NSC still hasn’t come up with a preferred plan, ostensibly because it is so busy with other things.
Some White House aides had hoped to have a report on the issue to give to the president months ago. But “the complexity of this issue really makes it a very challenging area to arrive at any sort of policy on,” the senior official said. A Cabinet meeting to be chaired by National Security Adviser Susan Rice, ostensibly to make a decision, initially was scheduled for Wednesday, but it has been postponed.
The senior official said that the delays are due primarily to scheduling issues — “there are a lot of other things going on in the world” — that are pressing on officials’ time.
But WaPo also presents evidence that those who want back doors are just playing for time, until some kidnapping or terrorist attack investigation gets thwarted by encryption.
Although “the legislative environment is very hostile today,” the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”
There is value, he said, in “keeping our options open for such a situation.”
So long as the final decision never gets made, those who want back doors will be waiting for the moment when some event changes the calculus that currently weighs in favor of encryption. And, of course, we’ll all be relying on people like Jim Comey to explain why encryption made it impossible to catch a “bad guy,” which means the measure will probably ignore the other ways law enforcement can get information.
We are still living in Dick Cheney’s world, where missing a terrorist attack (other than the big one or the anthrax attack) is assumed to be career ending, even while failing to address other threats to the US (climate change and increasingly cybersecurity) are not. So long as that’s true, those waiting to use the next spectacular failure to make ill-considered decisions about back doors will await their day, putting some kinds of national security above others.
Update: Like me, Susan Landau thinks Wittes misunderstood what the White Paper said about who “won” this fight.
But the National Security Council draft options paper never mentions national-security threats as a concern in the option of disavowing legislation controlling encryption (it does acknowledge potential problems for law enforcement). The draft says that no-legislation approach would help foster “the greatest technical security.” That broad encryption use is in our national security interest is why the administration is heading to support the technology’s broad use. That’s the story here — and not the one about Silicon Valley.
When last we checked in on claims the US was going to cyber-deter China, I suggested people should understand the underlying dynamics at work.
Before people start investing belief in unicorn cyber deterrence, they’d do well to understand why it presents us such a tough problem.
That was 11 days ago. Since then, James Clapper has claimed (I’m not necessarily endorsing this claim as true, especially given the timing) the US isn’t even 100% sure China is behind the OPM hack — in part because we’ve lost some monitoring capabilities in recent years — all while making it clear we don’t consider it an attack because we do precisely the same thing to China. At the same time, top level US and Chinese officials met in anticipation of Xi Jinping’s visit. Here’s the White House readout of that meeting.
From September 9-12, senior Administration officials held a series of meetings with Secretary of the Central Political and Legal Affairs Commission of the Communist Party of China Meng Jianzhu in Washington, D.C. Mr. Meng traveled to Washington as President Xi Jinping’s Special Envoy to discuss cybersecurity and other issues in advance of President Xi’s State Visit. Secretary of Homeland Security Jeh Johnson hosted Mr. Meng during his visit. In this capacity, Secretary Johnson convened a meeting between members of the Chinese delegation and representatives from the Departments of State, Treasury, Justice, Federal Bureau of Investigation, and the Intelligence Community. In addition, FBI Director Comey also met with Mr. Meng at FBI headquarters for discussions. National Security Advisor Susan E. Rice received Mr. Meng for a meeting at the White House, where she had a frank and open exchange about cyber issues.
Remember: China is believed to have all of Jim Comey and Jeh Johnson’s security clearance files (probably Susan Rice’s as well). Comey in particular keeps raising that point. That surely adds something to such negotiations, knowing that your interlocutor has read a ready-made intelligence portfolio that your own government compiled on you.
Now the journalists who keep reporting that the US is about to, honest to god, this time they mean it, sanction China for its hacking report that sanctions are off the table for now, in part because those negotiations resulted in some kind of cyber agreement.
The United States will not impose economic sanctions on Chinese businesses and individuals before the visit of China President Xi Jinping next week, a senior administration official said Monday.
The decision followed an all-night meeting on Friday in which senior U.S. and Chinese officials reached “substantial agreement” on several cybersecurity issues, said the administration official, who spoke on the condition of anonymity because of the topic’s sensitivity.
The potential for sanctions in response to Chinese economic cyberespionage is not off the table and China’s behavior in cyberspace is still an issue, the official said. “But there is an agreement, and there are not going to be any sanctions” before Xi arrives on Sept. 24, the official said.
The breakthrough averted what would have raised a new point of tension with the Chinese that could have overshadowed the meeting — and Xi’s first state visit.
“They came up with enough of a framework that the visit will proceed and this issue should not disrupt the visit,” the official said. “That was clearly [the Chinese] goal.”
The reporting on this appears to be problematic, in part, because sources for these stories themselves misunderstand the issue.
Yet what that agreement is remains unclear. Two U.S. officials told The Daily Beast that substantial disagreement remains between the U.S. and China. China insists that it’s the victim of cyber spying, not a perpetrator. But the U.S. has filed criminal charges against Chinese officials for their role in stealing trade secrets and intellectual property from American companies.
[CSIS Deputy Director Scott] Kennedy noted that given the length of time Meng was in Washington, his visit almost certainly covered other issues, including China’s efforts to hunt down Chinese nationals accused of crimes who are living abroad. U.S. law enforcement officials have complained that Chinese state security operatives are working in this country illegally and trying to intimidate Chinese people living here legally.
Remember, “US official” is journalistic code often used for members of Congress or contractors. And if these (possible) members of Congress don’t understand that the US sensors embedded in China’s networks are incredibly invasive cyber spying, if whoever claimed that our indictment for stealing information on trade disputes (something we spy on too) believes that we indicted for stealing IP, if those sources can’t imagine we might respond to the OPM hack by cracking down on extraordinary Chinese agents in the US, then those sources aren’t appreciating the real power dynamics at stake. And we’re going to continue to have journalism on this topic that serves more to provide a convenient narrative than to inform.
Thank you for playing, thank you for providing the appearance of a threat to placate Congress and drive a narrative of a tough negotiation, all while not laying out how the OPM hack changes things.
Several things seem to have been missed in this recent round of cyber-deterrence unicorn reporting. While China’s crashing stock market (renewed again today) provides a bit more leverage for the US against China — among other things, it raises the value Chinese elites would place on their US property and holdings, though China itself wants to pressure some of the same elites — it is still not in our best interest to antagonize this relationship. Moreover, whatever additional leverage we’ve got economically is more than offset by the OPM and related hacks, which China could use in any number of ways to really damage the US, especially given so many of our other critical systems — public and private, and I suspect that’s part of what some of the related hacks have been designed to demonstrate — remain insecure.
Most importantly, even before the Snowden leaks, the US had a real interest in finding some kind of norms that would make the cyber realm less volatile. That’s probably even more true now, because (as Clapper said, and this part I believe) our adversaries have been hardening their own defenses while stealing information that turns out to be more valuable to the US, meaning we don’t have such asymmetric advantage in the cyber realm anymore.
This comes at a time when Congress has become adamantly opposed to anything that resembles negotiations, because to them it looks like weakness. And most seem not to understand the stakes behind the reasons why the OPM hack cannot be considered an attack.
So if some credulous reporting created the space for such an agreement, great!
There are two things Cy Vance (writing with Paris’ Chief Prosecutor, the City of London Policy Commissioner, and Javier Zaragoza, Spain’s High Court) doesn’t mention in his op-ed calling for back doors in Apple and Google phones.
iPhone theft and bankster crime.
The former is a huge problem in NYC, with 8,465 iPhone thefts in 2013, which made up 18% of the grand larcenies in the city. The number came down 25% (and the crime started switching to Samsung products) last year, largely due to Apple’s implementation of a Kill Switch, but that still leaves 6,000 thefts a year — as compared to the 74 iPhones Vance says NYPD wasn’t able to access (he’s silent about how many investigations, besides the 3 he describes, that actually thwarted; Vance ignores default cloud storage completely in his op-ed). The numbers will come down still further now that Apple has made the Kill Switch (like encryption) a default setting on the iPhone 6. But there are still a lot of thefts, which can not only result in a phone being wiped and resold, but also an identity stolen. Default encryption will protect against both kinds of crime. In other words, Vance just ignores how encryption can help to prevent a crime that has been rampant in NYC in recent years.
Bankster crime is an even bigger problem in NYC, with a number of the worlds most sophisticated Transnational Crime Organizations, doing trillions of dollars of damage, headquartered in the city. These TCOs are even rolling out their very own encrypted communication system, which Elizabeth Warren fears may eliminate the last means of holding them accountable for their crimes. But Vance — one of the prosecutors that should be cracking down on this crime — not only doesn’t mention their special encrypted communication system, but he doesn’t mention their crimes at all.
There are other silences and blind spots in Vance’s op-ed, too. The example he starts with — a murder in Evanston, not any of the signees’ jurisdiction — describes two phones that couldn’t be accessed. He remains silent about the other evidence available by other means, such as via the cloud. Moreover, he assumes the evidence will be in the smart phone, which may not be the case. Moreover, it’s notable that Vance focuses on a black murder victim, because racial disparities in policing, not encryption, are often a better explanation for why murders of black men remain unsolved 2 months later. Given NYPD’s own crummy record at investigating and solving the murders of black and Latino victims, you’d think Vance might worry more about having NYPD reassign its detectives accordingly than stripping the privacy of hundreds of thousands.
Then Vance goes on to describe how much smart phone data they’re still getting.
In France, smartphone data was vital to the swift investigation of the Charlie Hebdo terrorist attacks in January, and the deadly attack on a gas facility at Saint-Quentin-Fallavier, near Lyon, in June. And on a daily basis, our agencies rely on evidence lawfully retrieved from smartphones to fight sex crimes, child abuse, cybercrime, robberies or homicides.
Again, Vance is silent about whether this data is coming off the phone itself, or off the cloud. But it is better proof that investigators are still getting the data (perhaps via the cloud storage he doesn’t want to talk about?), not that they’re being thwarted.
Like Jim Comey, Vance claims to want to have a discussion weighing the “marginal benefits of full-disk encryption and the need for local law enforcement to solve and prosecute crimes.” But his op-ed is so dishonest, so riven with obvious holes, it raises real questions about both his honesty and basic logic.
Ben Wittes has a summary of last Wednesday’s “Going Dark” hearings. He engages in a really amusing straw man — comparing a hypothetically perfectly secure Internet with ungoverned Somalia.
Consider the conceptual question first. Would it be a good idea to have a world-wide communications infrastructure that is, as Bruce Schneier has aptly put it, secure from all attackers? That is, if we could snap our fingers and make all device-to-device communications perfectly secure against interception from the Chinese, from hackers, from the FSB but also from the FBI even wielding lawful process, would that be desireable? Or, in the alternative, do we want to create an internet as secure as possible from everyone except government investigators exercising their legal authorities with the understanding that other countries may do the same?
Conceptually speaking, I am with Comey on this question—and the matter does not seem to me an especially close call. The belief in principle in creating a giant world-wide network on which surveillance is technically impossible is really an argument for the creation of the world’s largest ungoverned space. I understand why techno-anarchists find this idea so appealing. I can’t imagine for moment, however, why anyone else would.
Consider the comparable argument in physical space: the creation of a city in which authorities are entirely dependent on citizen reporting of bad conduct but have no direct visibility onto what happens on the streets and no ability to conduct search warrants (even with court orders) or to patrol parks or street corners. Would you want to live in that city? The idea that ungoverned spaces really suck is not controversial when you’re talking about Yemen or Somalia. I see nothing more attractive about the creation of a worldwide architecture in which it is technically impossible to intercept and read ISIS communications with followers or to follow child predators into chatrooms where they go after kids.
This gets the issue precisely backwards, attributing all possible security and governance to policing alone, and none to prevention, and as a result envisioning chaos in a possibility that would, in fact, have less or at least different kinds chaos. Wittes simply dismisses the benefits of a perfectly secure Internet (which is what all the pro-backdoor witnesses at the hearings did too, ignoring, for example, the effect that encrypting phones would have on a really terrible iPhone theft problem). But Wittes’ straw man isn’t central to his argument, just a tell about his biases.
Wittes, like Comey, also suggests the technologists are wrong when they say back doors will be bad.
There is some reason, in my view, to suspect that the picture may not be quite as stark as the computer scientists make it seem. After all, the big tech companies increase the complexity of their software products all the time, and they generally regard the increased attack surface of the software they create as a result as a mitigatable problem. Similarly, there are lots of high-value intelligence targets that we have to secure and would have big security implications if we could not do so successfully. And when it really counts, that task is not hopeless. Google and Apple and Facebook are not without tools in the cybersecurity department.
Wittes appears unaware that the US has failed miserably at securing its high value intelligence targets, so it’s not a great counterexample.
But I’m primarily interested in Wittes’ fondness for an idea floated by Sheldon Whitehouse: that the government force providers to better weigh the risk of security by ensuring it bears liability if the cops can’t access communications.
Another, perhaps softer, possibility is to rely on the possibility of civil liability to incentivize companies to focus on these issues. At the Senate Judiciary Committee hearing this past week, the always interesting Senator Sheldon Whitehouse posed a question to Deputy Attorney General Sally Yates about which I’ve been thinking as well: “A girl goes missing. A neighbor reports that they saw her being taken into a van out in front of the house. The police are called. They come to the home. The parents are frantic. The girl’s phone is still at home.” The phone, however, is encrypted:
WHITEHOUSE: It strikes me that one of the balances that we have in these circumstances where a company may wish to privatize value by saying, “Gosh, we’re secure now. We got a really good product. You’re going to love it.” That’s to their benefit. But for the family of the girl that disappeared in the van, that’s a pretty big cost. And when we see corporations privatizing value and socializing cost so that other people have to bear the cost, one of the ways that we get back to that and try to put some balance into it, is through the civil courts, through a liability system.
If you’re a polluter and you’re dumping poisonous waste into the water rather than treating it properly, somebody downstream can bring an action and can get damages for the harm that they sustain, can get an order telling you to knock it off. I’d be interested in whether or not the Department of Justice has done any analysis as to what role the civil-liability system might be playing now to support these companies in drawing the correct balance, or if they’ve immunized themselves from the cost entirely and are enjoying the benefits. I think in terms of our determination as to what, if anything, we should do, knowing where the Department of Justice believes the civil liability system leaves us might be a helpful piece of information. So I don’t know if you’ve undertaken that, but if you have, I’d appreciate it if you’d share that with us, and if you’d consider doing it, I think that might be helpful to us.
YATES: We would be glad to look at that. It’s not something that we have done any kind of detailed analysis. We’ve been working hard on trying to figure out what the solution on the front end might be so that we’re not in a situation where there could potentially be corporate liability or the inability to be able to access the device.
WHITEHOUSE: But in terms of just looking at this situation, does it not appear that it looks like a situation where value is being privatized and costs are being socialized onto the rest of us?
YATES: That’s certainly one way to look at it. And perhaps the companies have done greater analysis on that than we have. But it’s certainly something we can look at.
I’m not sure what that lawsuit looks like under current law. I, like the Justice Department, have not done the analysis, and I would be very interested in hearing from anyone who has. Whitehouse, however, seems to me to be onto something here. Might a victim of an ISIS attack domestically committed by someone who communicated and plotted using communications architecture specifically designed to be immune, and specifically marketed as immune, from law enforcement surveillance have a claim against the provider who offered that service even after the director of the FBI began specifically warning that ISIS was using such infrastructure to plan attacks? To the extent such companies have no liability in such circumstances, is that the distribution of risk that we as a society want? And might the possibility of civil liability, either under current law or under some hypothetical change to current law, incentivize the development of secure systems that are nonetheless subject to surveillance under limited circumstances?
Why don’t we make the corporations liable, these two security hawks ask!!!
This, at a time when the cybersecurity solution on the table (CISA and other cybersecurity bills) gives corporations overly broad immunity from liability.
Think about that.
While Wittes hasn’t said whether he supports the immunity bills on the table, Paul Rosenzweig and other Lawfare writers are loudly in favor of expansive immunity. And Sheldon Whitehouse, whose idea this is, has been talking about building in immunity for corporations in cybersecurity plans since 2010.
I get there is a need for limited protection for corporations that help the Federal government spy (especially if they’re required to help), which is what liability is always about. I also get that every time we award it, it keeps getting bigger, and years later we discover that immunity covers fairly audacious spying far beyond the ostensible intent of the bill. Though CISA doesn’t even hide that this data will be used for purposes far beyond cybersecurity.
Far, far more importantly, however, one of the problems with the cyber bills on the table is by awarding this immunity, they’re creating a risk calculation for corporations to be sloppy. Sure, there will still be reputational damage every time a corporation exposes its customers’ data to hackers. But we’ve seen in the financial sector — where at least bank regulators require certain levels of hygiene and reporting — bank immunity tied to these reporting requirements appears to have made it impossible to prosecute egregious bank crime.
The banks have learned (and they will be key participants in CISA) that they can obtain impunity by sharing promiscuously (or even not so promiscuously) with the government.
And unlike those bank reporting laws, CISA doesn’t require hygiene. It doesn’t require that corporations deploy basic defenses before obtaining their immunity for information sharing.
If liability is such a great idea, then why aren’t these men pushing the use of liability as a tool to improve our cyberdefenses, rather than (on Whitehouse’s part, at least) calling for the opposite?
Indeed, if this is about appropriately balancing risk, there is no way you can use liability to get corporations to weigh the value of back doors for law enforcement, without at the same time ensuring all corporations also bear full liability for any insecurity in their system, because otherwise corporations won’t be weighing the two sides.
Using liability as a tool might be a clever idea. But using it only for law enforcement back doors does nothing to identify the appropriate balance.
Jim Comey has used what has thus far been an infallible PR tactic since he started as FBI Director. He invites a bunch of handpicked journalists to lunch and eats them alive with his charisma, after which they dutifully report stuff that makes no sense.
In the latest incarnation, on the day after he made two unconvincing pleas for back-doors-called-front-doors to two Senate committees, hinting all the time of big threats over the Fourth, a bunch of journalists then reported that FBI had arrested some people.
Mr. Comey would not say what the plots entailed or how many people had been arrested, but he said the plotters were among more than 10 people with ties to the Islamic State — also known as ISIS or ISIL — who had been arrested across the country in the past month.
Meanwhile, more skeptical types like Dan Froomkin and Adam Johnson started reviewing FBI public announcements and even asking questions, only to have FBI respond, trust us. Froomkin found only one — yet another guy entrapped by the FBI — that looked like Comey’s claimed arrest.
I will have more to say about Comey’s discussion of terrorist arrestees who remain secret. I think they may in fact exist — indeed, I think it quite likely that FBI has already started using the enhanced material support sentences from the ironically named “USA Freedom Act” as leverage to get dopes on Twitter to turn informants into ISIS.
But the FBI has what should be a serious problem. It has been more than 3 days since July 4, since these purported arrests, well over 72 hours, the time period under which federal defendants should be presented and charged. And we’ve seen virtually no arrestees.
Where is the body? Or rather, the multiple bodies Comey insists exist?
Is the FBI subjecting these 10 guys to extended interrogations without telling the press or (potentially) even the local public defenders office so as to be able to extend the already extended “public safety” gutting of Miranda the FBI has been enacting of late? Have these defendants been denied presentment?
Where are the bodies, Comey?
I’ll have a piece in Salon shortly about the two hearings on whether FBI should be able to mandate back doors (they call them front doors because that fools some Senators about the security problems with that) in software.
One thing not in there, however, has to do with a bill the Senate Intelligence Committee is considering that would require Facebook and Twitter and other social media to report terrorist content to authorities. ABC News, quoting Richard Clarke (who hasn’t had an official role in government for some years but is on ABC’s payroll) reported that the social media companies were not now reporting terrorist content.
In the middle of the SSCI hearing on this topic, Dianne Feinstein asked Jim Comey whether social media companies were reporting such content. Comey said they are (he did say they’ve gotten far better of late). Feinstein asked whether there ought to be a law anyway, to mandate behavior the companies are already doing. Comey suggested it wasn’t necessary. Feinstein said maybe they should mandate it anyway, like they do for child porn.
All of which made it clear that such a law is unnecessary, even before you get into the severe problems with the law (such as defining who is a terrorist and what counts as terrorist content).
SSCI will probably pass it anyway, because that’s how they respond to threats of late: by passing legislation that won’t address it.
Note, Feinstein also got visibly and audibly and persistently pissed at Ron Wyden for accurately describing what Deputy Attorney General Sally Yates had said she wanted in an earlier hearing: for providers to have keys that the FBI could use. Feinstein seems to believe good PR will eliminate all the technical problems with a back door plan, perhaps because then she won’t be held responsible for making us less secure as a result.
Update: The measures is here, in the Intelligence Authorization.
Update: Title changed for accuracy.