FBI's Top Lawyer Says Locking Law Enforcement Out Of Cellphones Is The Public's Choice To Make

from the finally,-a-bit-of-service-from-our-public-servants dept

The FBI’s General Counsel is swimming in the wake of FBI Director James Comey’s personal Crypto War. James Baker appears to be much more pragmatic about encryption than his boss. He’s also conceded something Comey appears unwilling to: that the public’s ultimately in charge here because that’s the way our government is supposed to work.

While the FBI has previously argued in favor of backdoors that let authorities defeat encryption, Baker said the issue must ultimately be decided by the American people.

“We are your servants,” Baker said. “The FBI are your servants, we will do what you want us to do.”

This concession was not without hedges. Baker pointed out that the agency isn’t always able to obtain what it’s seeking, even with the proper paperwork.

“We go to judges, we do what the law requires, we show up with the order and we can’t get the fruits of surveillance for a variety of technical reasons, increasingly due to encryption,” he said.

Baker also seems to accept the facts of the situation, something Comey seems deliberately unwilling to do. The law enforcement-only “golden key” Comey believes tech companies can create (but won’t because it hates the FBI) is an impossibility. Baker went so far in comments to refer (indirectly) to Comey’s beliefs as “magical thinking” and that the solution he’s seeking isn’t “scientifically or mathematically possible.”

It’s all in our hands, according to Baker. The balance between liberty and security is a choice we have to make. It would appear the FBI’s legal arm is far more grounded in reality than its director. Baker’s comments finally acknowledge the public’s stake in the ongoing discussion, which to date has mostly consisted of Comey insisting encryption can be safely compromised, no matter what anyone says.

But there’s an additional aspect to Baker’s more reasonable statements that possibly undercuts his seeming deference to the will of the people. While it’s nice to finally be recognized as a relevant stakeholder, there are other issues at play in Comey’s broken-on-purpose encryption proposals. The FBI and other US law enforcement agencies would certainly welcome the removal of this barrier to the acquisition of cellphone communications and data. So would nearly every other government in the world.

Going Dark proponents fear that split key-escrow solutions that have been proposed will only further weaken crypto and certainly increase complexity.

“If we were able to engineer a mechanism where we’re splitting a key and having a third party escrow it where the government could ask for it, the very next thing that would happen is that China et al will ask for the same solution. And we’re unlikely to give them the same solution,” [Eric] Wenger [Director of Cybersecurity and Privacy, Cisco] said. “Complexity kills, and the more complex you make a system, the more difficult it is to secure it. I don’t see how developing a key-bases solution secures things the way you want it to without creating a great deal of complexity and having other governments demand the same thing.”

If the US government successfully carves mandated holes in encryption, it can’t very well deny the same privilege to other countries. Even worse, it can’t prevent other countries from using the same holes it’s opened, even if it did choose to handle this in a completely hypocritical manner. A hole is a hole. Multiple governments all asking for their own golden keys creates additional holes. The FBI won’t want to share its key with potential enemies. And the US government — especially if backdoors are mandated by legislation — won’t be able to tell other countries they can’t have the same sort of access, at least not without appearing incredibly hypocritical.

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Comments on “FBI's Top Lawyer Says Locking Law Enforcement Out Of Cellphones Is The Public's Choice To Make”

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15 Comments
DannyB (profile) says:

Policing the public

You can only police the public to the extent they want to be policed.

There are a range of choices from a perfectly safe and secure society, to a do anything you want without policing society.

At the first extreme, you have a police state. Those at the top quickly grab power and become tyrants. In the second extreme, you have anarchy and vigilante justice.

There is probably a value in between the two extremes that most of the public wants.

(and no, this post, I would not intend to have a /sarc tag, unlike most of my others.)

Anonymous Coward says:

Re: Policing the public

“At the first extreme, you have a police state. .. In the second extreme, you have anarchy and vigilante justice. There is probably a value in between the two extremes that most of the public wants.”

Or you could easily get high levels of both conditions at the same time.

Let’s say you live in a violent, high-crime, gang-plagued, inner city. Then odds are that you can also expect excessively-violent, heavy-handed police, who might even actively lobby against relaxing anti-drug laws and other victimless “crimes” — because busting people for consensual conduct is job security for them.

It’s a big reason why people move out of high crime neighborhoods, that combination of being victimized by both violent criminals AND violent police.

Anonymous Coward says:

history will repeat

If the Snowden leaks taught us anything, it’s that the government will not be bound by the law, and the corporations will dutifully comply in whatever lawbreaking they are asked to take part in, and lastly, that no one will ever be punished for these criminal violations when the government orders it.

So any promises made by a government official about limiting government power -or actually obeying the law- should always be viewed with great suspicion. Especially when dealing with agencies that operate in secret.

JustShutUpAndObey says:

Re: the purpose of the Constitution

Since I couldn’t edit my original post, just to make things clear: It doesn’t matter what the “Public” is okay with. It only matters what the Constitution is okay with: “…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Anonymous Coward says:

I can’t help but feel the FBI is trying to trick the American public into letting our guard down. They probably want this public debate to die down so they can secretly subvert tech companies into “voluntarily” sharing customer data with them. Similar to how CISA works.

This new mass surveillance strategy gives blanket immunity to private sector companies such as AT&T, Verizon, Google, Facebook, etc. Having them “voluntarily” share information with the FBI and deny customers any legal “standing” to sue these companies due to blanket immunity.

Welcome to the future of warrantless surveillance. It’s unconstitutional, yet legal at the same time…

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