The FBI has a new proposal afoot to require communications companies doing business in the US to make their communications technologies “wiretap-ready”, to avoid the “going-dark problem”. From Charlie Savage at the New York Times, six hours ago:
The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations. […]
Currently, such orders instruct recipients to provide technical assistance to law enforcement agencies, leaving wiggle room for companies to say they tried but could not make the technology work. Under the new proposal, providers could be ordered to comply, and judges could impose fines if they did not.
Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.
Lord forbid that private companies should offer services that can’t be wiretapped by the government. If the FBI finds itself unable to routinely spy on the communications of people not yet suspected of any crime, that’s a feature, not a bug, and is in fact what the Fourth Amendment requires.
In America, this manic need to collect every iota of data is “helping defeat the terrorists” and “protecting the homeland”. When other countries do it, though, it’s a whole different story. Read on!
Our heroic traditional media has been very ready with the pious horror when it comes to what other governments do, surveillance-wise. These were the comments of Stephen Kinzer at the New York Times, describing the abusive surveillance of the East German government uncovered after the fall of communism in 1992:
That a Government agency would feel compelled to gather so much information about so many citizens reflects the frightening pathology of the men who led East Germany. They considered each citizen a potential subversive, and wanted to know as much as they could about anyone who expressed even the slightest political or social criticism. With a meticulous efficiency almost unknown outside Germany, they ordered every detail typed and filed. They accumulated far more information than they could possibly analyze or use. Ultimately, they drowned in their sea of minutiae, so consumed with detail that they failed to recognize the changes sweeping through their country.
Governments that feel compulsion to gather everything on only one-third of their citizens are “frighteningly pathological”? How interesting! How far we have come since 1992! What’s happening now makes the Stasi’s antiquated paper-based surveillance of that small a proportion of their people seem positively antiquated. It’s like the East German government didn’t even care about the war on terror. Amateurs.
Let’s take another, more recent example, of the United Arab Emirates’ proposal last year to ban Blackberrys from their territory, precisely because they were not “wiretap-ready”. Secretary of State Hillary Clinton actually scolded them, saying:
“We know that there is a legitimate security concern, but there’s also a legitimate right of free use and access,” the Secretary said, as reported by the Wall Street Journal. “So I think we will be pursuing both technical and expert discussions as we go.”
It appears that this “legitimate right of free use and access” is limited to residents of the United Arab Emirates. Americans, apparently, can go suck on an egg.
So, if the FBI wants so badly to compromise the security of private individuals’ communications, there must have been FBI investigations that were thwarted by encryption, right? Actually, not so much. Christopher Soghoian notes in his research (see the table below) that there were exactly zero cases between 2000 and 2011 where FBI investigations were thwarted by encryption. Perhaps the targets of FBI wiretaps tend to not use encryption, or to not use it consistently. But for whatever reason, the “going dark” problem seems simply not to apply to investigations of actual terrorism suspects.
Hence, there’s only one category of people for whom it is a problem in the FBI’s eyes: Namely, people who are not suspected yet of planning or having committed acts of terrorism, otherwise known as “the rest of us.” What was the phrase from that 1992 New York Times article?
They considered each citizen a potential subversive.
Ah yes. That was it.
For the moment, if you’re interested in which companies do actually try to protect you from warrantless government surveillance, EFF has a great new report, “Who Has Your Back? 2013”, that will help.
If you are interested in encrypting your digital footprint, you can use the Tor browser combined with Hushmail; but be warned. This is not an end-to-end, perfectly secure solution, and Hushmail does not guarantee to resist government data requests connected to actually illegal activity.
If you’re interested in requesting your own FBI file, the procedure for doing so is here.
And if you’d like to find out about the latest developments in quantum encryption, which could result in a real solution for people wanting genuinely private digital conversations, look for our forthcoming column in our ongoing Privacy Concerns of 2020 series, “By 2020, Commercial Vendors Will Offer Quantum Encryption.”