The war on encryption waged by the F.B.I. and other intelligence agencies is unnecessary, because the data trails we voluntarily leak allow "Internet of Things" devices and social media networks to track us in ways the government can access.
That's the short version of what's in "Don't Panic: Making Progress on the 'Going Dark' Debate," a study published today by the Berkman Center for Internet and Society at Harvard.
The title references the government's argument that "encrypted communications are creating a 'going dark' crisis that will keep them from tracking terrorists and kidnappers," as David E. Sanger explains in his coverage at the New York Times.
From the Berkman study intro:
In the last year, conversations around surveillance have centered on the use of encryption in
communications technologies. The decisions of Apple, Google, and other major providers of
communications services and products to enable end-to-end encryption in certain applications, on
smartphone operating systems, as well as default encryption of mobile devices, at the same time that
terrorist groups seek to use encryption to conceal their communication from surveillance, has fueled this
The U.S. intelligence and law enforcement communities view this trend with varying degrees of alarm,
alleging that their interception capabilities are "going dark." As they describe it, companies are
increasingly adopting technological architectures that inhibit the government's ability to obtain access to
communications, even in circumstances that satisfy the Fourth Amendment's warrant requirements.
Encryption is the hallmark of these architectures. Government officials are concerned because, without
access to communications, they fear they may not be able to prevent terrorist attacks and investigate and
prosecute criminal activity. Their solution is to force companies to maintain access to user
communications and data, and provide that access to law enforcement on demand, pursuant to the
applicable legal process. However, the private sector has resisted. Critics fear that architectures geared to guarantee such access would compromise the security and privacy of users around the world, while also
hurting the economic viability of U.S. companies. They also dispute the degree to which the proposed
solutions would truly prevent terrorists and criminals from communicating in mediums resistant to
Leading much of the debate on behalf of the U.S. government is the Department of Justice, including the
Federal Bureau of Investigation, whose leaders have commented on the matter in numerous public
statements, speeches, and Congressional testimony throughout 2014 and 2015. After nearly a year of
discourse, which included numerous statements critical of the government's position from former U.S.
intelligence officials and security technologists, the White House declared in October 2015 it would not
pursue a legislative fix in the near future.
However, this decision has not brought closure. The FBI has since focused its energy on encouraging
companies to voluntarily find solutions that address the investigative concerns. Most recently, terrorist
attacks in San Bernardino, Paris, and elsewhere around the world, along with rising concern about the
terrorist group ISIS, have focused increased attention on the issues of surveillance and encryption. These
developments have led to renewed calls, including among U.S. Presidential candidates, for the
government and private sector to work together on the going dark issue and for the Obama
administration to reconsider its position.
You can read the whole report here, it's offered in PDF.
The "findings" section is chilling. Basically, they're saying the government won't have any problem tracking us and surveilling our communications, because we're freely sharing a lot of very revealing personal data and metadata to third parties, all day, every day, security be damned. "Internet of Things" connected devices, social media, and everywhere else you're leaking data without encryption? All of those are accessible sources of data for intelligence agencies or law enforcement.
In short, our findings are:
• End-to-end encryption and other technological architectures for obscuring user data are
unlikely to be adopted ubiquitously by companies, because the majority of businesses that
provide communications services rely on access to user data for revenue streams and
product functionality, including user data recovery should a password be forgotten.
• Software ecosystems tend to be fragmented. In order for encryption to become both
widespread and comprehensive, far more coordination and standardization than currently
exists would be required.
• Networked sensors and the Internet of Things are projected to grow substantially, and
this has the potential to drastically change surveillance. The still images, video, and audio
captured by these devices may enable real-time intercept and recording with after-thefact
access. Thus an inability to monitor an encrypted channel could be mitigated by the
ability to monitor from afar a person through a different channel.
• Metadata is not encrypted, and the vast majority is likely to remain so. This is data that
needs to stay unencrypted in order for the systems to operate: location data from cell
phones and other devices, telephone calling records, header information in e-mail, and so
on. This information provides an enormous amount of surveillance data that was
unavailable before these systems became widespread.
• These trends raise novel questions about how we will protect individual privacy and
security in the future. Today's debate is important, but for all its efforts to take account of
technological trends, it is largely taking place without reference to the full picture.
The structure of the study was pretty novel. From the New York Times:
The Harvard study, funded by the Hewlett Foundation, was unusual because it involved technical experts, civil libertarians and officials who are, or have been, on the forefront of counterterrorism. Larry Kramer, the former dean of Stanford Law School, who heads the foundation, noted Friday that until now "the policy debate has been impeded by gaps in trust — chasms, really — between academia, civil society, the private sector and the intelligence community" that have impeded the evolution of a "safe, open and resilient Internet."
Among the chief authors of the report is Matthew G. Olsen, who was a director of the National Counterterrorism Center under Mr. Obama and a general counsel of the National Security Agency.
Two current senior officials of the N.S.A. — John DeLong, the head of the agency's Commercial Solutions Center, and Anne Neuberger, the agency's chief risk officer — are described in the report as "core members" of the group, but did not sign the report because they could not act on behalf of the agency or the United States government in endorsing its conclusions, government officials said.