DHS Opening Office In Silicon Valley To More Efficiently Complain To Tech Companies About Encryption

from the we-have-no-solutions-but-we-do-have-plenty-of-talking-points! dept

If only the endlessly-escalating West Coast cost of living could have prevented this:

Today I am pleased to announce that the Department of Homeland Security is also finalizing plans to open up a satellite office in Silicon Valley, to serve as another point of contact with our friends here. We want to strengthen critical relationships in Silicon Valley and ensure that the government and the private sector benefit from each other’s research and development.

That’s Jeh Johnson addressing the crowd at the RSA Conference. Of all the news no one wanted to hear, this has to be close to the top of the list. Three-lettered government agencies are pretty much NIMBY as far as the tech world is concerned, especially after Snowden’s revelations have seriously and swiftly eroded trust in the government.

No one wants a next-door neighbor who’s going to constantly be dropping by for a cup of decryption.

The current course we are on, toward deeper and deeper encryption in response to the demands of the marketplace, is one that presents real challenges for those in law enforcement and national security.

Let me be clear: I understand the importance of what encryption brings to privacy. But, imagine the problems if, well after the advent of the telephone, the warrant authority of the government to investigate crime had extended only to the U.S. mail.

Our inability to access encrypted information poses public safety challenges. In fact, encryption is making it harder for your government to find criminal activity, and potential terrorist activity.

We in government know that a solution to this dilemma must take full account of the privacy rights and expectations of the American public, the state of the technology, and the cybersecurity of American businesses.

We need your help to find the solution.

“Let me be clear: I understand the importance of what doors bring to privacy. But, imagine the problems if, well after humanity moved out of caves, the warrant authority of the government to investigate crime had only extended to dwellings without doors.”

Bullshit. The DHS, along with other law enforcement agencies — is seeking is the path of least resistance. It can get warrants to search encrypted devices. It just may not be able to immediately crack them open and feast on the innards. It may also get court orders to compel decryption. This is far less assured and risks dragging the Fifth Amendment down to the Fourth’s level, but it’s still an option.

Then there’s the option of subpoenaing third parties, like cloud storage services, to find the content that can’t be accessed on the phone. So, it’s not as though it’s locked out forever. This may happen occasionally but it won’t suddenly turn law enforcement into a wholly futile pursuit.

Silicon Valley isn’t going to help the DHS “find a solution.” There isn’t one. The DHS may as well get some legislation going and force companies to provide a stupid “good guys only” backdoor because the tech world already knows you can’t keep bad guys out with broken encryption. This should be painfully obvious and yet, the “good guy” agencies seem to think tech companies are just holding out on them.

From there, Johnson switches to his most disingenuous rhetorical device: the assertion that Americans are clamoring for an unrealistic level of safety.

I tell audiences that I can build you a perfectly safe city on a hill, but it will constitute a prison.

Who the fuck is asking you to do that? The only people pushing for “perfectly safe” are government agencies who like big budgets and increased power and the private companies that profit from this sort of fearmongering. Most Americans are far more pragmatic and they’d rather keep what’s left of their privacy and civil liberties, even if it means the safety of the country is slightly less assured.

And this makes me want to vomit with contempt:

In the name of homeland security, we can build more walls, erect more screening devices, interrogate more people, and make everybody suspicious of each other, but we should not do this at the cost of who we are as a nation of people who cherish privacy and freedom to travel, celebrate our diversity, and who are not afraid.


In the name of “homeland security,” we have TSA agents groping people, breaking their luggage, humiliating people with medical issues and stealing personal belongings — all without ever having prevented a single attempted hijacking or bombing. In the name of “national security,” we have indulged every nosy do-gooder with numerous hotlines to report their neighbors’ ownership of luggage or cameras or pressure cookers. In the name of the “war on terror,” we have a 100-mile buffer zone around the nation’s borders that nearly completely eliminates every Constitutional protection.

Jeh Johnson hasn’t been in the position long, but he’s already descended into inadvertent self-parody. This speech was apparently delivered with complete sincerity, which means Johnson has no idea how his agency is perceived. There are very few people who believe the DHS is some sort of civil liberties champion. Jeh Johnson is obviously one of them.

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Comments on “DHS Opening Office In Silicon Valley To More Efficiently Complain To Tech Companies About Encryption”

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James Burkhardt (profile) says:

Alright, ive gone back link to link, article to article through the archive looking for the answer to one question: has the Supreme Court ruled on the “100-mile constitution free zone”? Has it even been instituted to the degree suggested? I can find links appellate court rulings vacating the 4th amendment AT the border. I can find other links to rulings which claim that 100 miles is the defined ‘reasonable distance’ from the border in which you can search a vehicle for aliens. However, I can find no article which claims that these two rules combine to allow seizure personal belongings 100 miles from the border. I can see how it could be ruled this way, but has this legal theory ever been tested (IE has the border patrol actually tried it)?

Anonymous Coward says:

Re: Re:

… to allow seizure personal belongings 100 miles from the border.

You seem to be suggesting that the government may search a vehicle without having stopped it?

So the vehicle is driving down the freeway, and the officers are trucking right along with it, searching away… do they use skateboards to keep up with it, or something? Rocket-propelled hover-skateboards, I suppose.

‘Cause, you know, a stop would be a seizure.

James Burkhardt (profile) says:

Re: Re: Re:

Actually, that would be the seizure of a person, not personal belongings. Technically at that point only you enter custody. And being obtuse does not detract from my argument. Some district courts (not the SC) have rlued police have the right to stop anyone within 100 miles of the border to search the vehicle for aliens. But does that stop also grant the ability to confiscate anything they want as when you are searched at the border?

Anonymous Coward says:

Re: Re: Re: Re:

… that would be the seizure of a person, not personal belongings…

Oh, I understand now!

The people stop. But the car keeps driving down the road.

I feel like an idiot now. Why didn’t I see that before? It makes so much sense. The car keeps driving down the road. Along with all the belongings inside. Only the people stop.

Anonymous Coward says:

Re: Re: Re:2 Re:

I guess you missed the news sometime back. Look for it here at Techdirt. They now have mobile scanners, akin to those at the airport, allowing a check of the insides of vehicles without those vehicles having to stop. You can be searched while you are moving in a vehicle and be completely unaware of it. That doesn’t mean it didn’t happen.

From the shear bulk of traffic you don’t have to guess that no one decided to get a warrant for each and every vehicle that passed through.

Anonymous Coward says:

Re: Re: Re: Re:

Technically at that point…

Technically at that point, Terry v Ohio (1968) establishes a seizure within the meaning of the Fourth Amendment.

Our first task is to establish at what point in this encounter the Fourth Amendment becomes relevant. That is, we must decide whether and when Officer McFadden “seized” Terry and whether and when he conducted a “search.” . . . It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person.

James Burkhardt (profile) says:

Re: Re: Re:2 Re:

Exactly. He has committed seizure of that person. which is what i said happened. You seem to be arguing against yourself here.
Let me change my wording again, so your trollish pedantry can not get in the way of my question. Has the go ahead to search a vehicle within 100 miles of the border to determine the presence, or lack thereof, of aliens been interpreted to allow the collection of possessions, papers, and/or electronic devices unrelated to the presence, or lack thereof, of aliens? By interpreted I mean has this been attempted by border patrol. I am asking because after much investigation into previous tech dirt posts on this topic, I can’t find the case where these two rulings have actually been conflated to create the hypotetical 100-mile constitution free zone.

Anonymous Coward says:

Re: Re: Re:4 Re:

If you are asking if they are actually doing this…

I don’t think the guy’s asking an honest question. He sounds to me like he waltzed in here with an axe to grind.

In essence, he’s attempting to draw a distinction closely related to the one that the California Supreme Court attempted in Breindlin (2007). In that case, California argued that stopping a car doesn’t amount to seizing the passengers. According to the U.S. Supreme Court, the California Supremes felt that—

 . . . a passenger “is not seized as a constitutional matter in the absence of additional circumstances that would indicate to a reasonable person that he or she was the subject of the peace officer’s investigation or show of authority.” The court reasoned that Brendlin was not seized by the traffic stop because Simeroth was its exclusive target, that a passenger cannot submit to an officer’s show of authority while the driver controls the car, and that once a car has been pulled off the road, a passenger “would feel free to depart or otherwise to conduct his or her affairs as though the police were not present.”

The California Supremes, of course, were reversed on that.

This poster’s argument seems to be that when the U.S. Supreme Court authorized the operation of fixed checkpoints in Martinez-Fuerte (1976), the Supreme Court did not authorize any meaningful interference with possessory interests in personal property. That is, a checkpoint which stops a car doesn’t actually require the car to change its trajectory.

In short, he supposes that seizing a person doesn’t amount to a seizure of the clothes that the person’s wearing.

Anonymous Coward says:

Now I am totally amazed at how law enforcement managed to operate before the days of computers. To hear present law enforcement, it can’t be done. Present law enforcement wants to require everything be open to them all the time every where.

So how did the American citizen live without a computer that didn’t open their lives up to minute inspection in the past? It is strongly evident that law enforcement today doesn’t mind ignoring the US Constitution. Passing laws, especially secret laws, does not make them legal, any more than the local politician with a case of the ass against, baggy trousers making a law against them not because they are some sort of dress code violation but because they are baggy.

Joel Coehoorn says:

Warrants are Fine

… imagine the problems if, well after the advent of the telephone, the warrant authority of the government to investigate crime had extended only to the U.S. mail.

Warrants are fine. No one has a problem with them. But here’s what the warrant process looks like: an investigator goes to a judge and gets approval, and then serves the warrant for the single device or account in question directly to the owner of that device or account being investigated.

What the government is asking for here goes well beyond warrants, and makes Americans question whether or not we really are still “secure in our … papers and effects.”

agalvan (profile) says:

Useless conversation

The government asking a few companies to implement backdoors in the devices they make and sell will not change the fact that just about anyone can build a fully encrypted device and have fully encrypted conversations using said device.
That is the world we live in.
The conversation between Silicon Valley fighting for the fourth ammendment and the government fighting for backdoors is a waste of time in the world we live in today.

DB (profile) says:

Silicon valley will help DHS search for a solution. All that it takes is money and they’ll find plenty of companies willing to search.

Most of them will be either branches of traditional “beltway bandits”, and small companies that are quickly bought up by the same. The only innovation will be in how creatively the proposals are written.

Because dealing with the government requires a specialized approach. One that doesn’t put progress above correctly submitting paperwork and fulfilling contract requirements precisely.

What they won’t get is easy access to the largest companies — the ones they want to influence. It’s fine for a company like RSA to get a bad reputation for putting backdoors into their products. It would be a disaster for Google, Facebook, Apple, Yahoo!, etc.

Anonymous Coward says:

collect it all, let God sort it out

The DHS needs encryption backdoors because this is how they are going to catch the next Al Kaida terrorist plot. But because every one of us might be a terrorist-in-hiding, the Feds need to be able to see everything that all of us do, all the time.

With the overseas wars winding down, the military-industrial-security complex will be desperate to find a new gravy train, and that gravy train will be domestic security. As with the NSA, private for-profit corporations will be granted lucrative contracts to assist the DHS in its domestic spy operations, and will naturally be lobbying hard to make sure that this “war on terror” never ends.

Zonker says:

In fact, encryption is making it harder for your government to find criminal activity, and potential terrorist activity.

The government’s job is not to “find criminal activity”. The people report crime to law enforcement, and then law enforcement investigates and prosecutes the crimes reported. We the people, collectively, are supposed to be the ones who determine what is or isn’t criminal activity. Our representatives in government are supposed to codify what we the people, collectively, say should be lawful or unlawful conduct. In court, a jury of our peers are the ones who are supposed to indict and decide whether the accused have broken our laws and deserve to face the consequences. We the people are the ones who are supposed to determine the consequences for breaking our laws.

The government is supposed to respond to the will of the people, not control the people by exerting it’s own will upon us.

tqk (profile) says:

There goes the neighborhood. :-P

Then there’s the option of subpoenaing third parties, like cloud storage services, to find the content that can’t be accessed on the phone.

They can even get a gag order on said third parties to keep you from finding out that you’re being spied upon. Feature!

I can think of one good thing wrt the DHS opening an office in CA. It could create a new enjoyable hobby for Californians. “Hey everybody, I’m going dumpster diving at the new DHS office. Anyone want to join me?”

Anonymous Coward says:

Aww, it’s just like having your state security advisor in every room.

Silicon valley is our friend, and friends let each other look into their development and production environment.

Or else we wouldn’t be friends anymore, and that would be sad…for you.

Everybody could build fully encrypted systems, until those get made illegal and possessing one or knowing how to build one is forbidden.
Nobody should have encryption, except your lovely authorities and their friends who absolutely pose no threat or risk to anyone.

100 mile constitution free zone, does this only include land borders? I mean the coast can be a border too. Even if you include border to international waters.
And the internet is the border to the digital age.
So hand over your servers for customs inspections.

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