Yesterday, on Lawfare, FBI Director James Comey laid out his concern that the growing adoption of strong encryption technologies will frustrate law enforcement’s ability to conduct investigations — what he calls the “Going Dark” problem. The gist of Comey’s position is this: He recognizes encryption is important to security and privacy, but believes we are fast approaching an age of “universal encryption” that is in tension with the government’s investigative needs. Although he assures us he is not a “maniac,” Comey also feels it is his duty to ensure that we have a broad public debate that considers the costs as well as the benefits of widespread encryption. Comey will presumably be making the same points tomorrow afternoon at a Senate Intelligence Committee hearing where he will be the sole witness, while a broader panel of witnesses will be testifying on the same controversy tomorrow morning before the Senate Judiciary Committee.
First, credit where credit is due: James Comey is certainly not a maniac but a dedicated law enforcement official, one who has in the past put his career on the line to impose the rule of law on overreaching government surveillance. And it’s true that encryption will likely frustrate some investigations, a point I addressed directly when I testified House hearing on the subject in April. It’s also true that the FBI has so far to come up with any compelling examples of how encryption has actually stymied any investigations, and the latest wiretapping report shows that encryption is not yet a significant barrier to FBI electronic surveillance — encryption prevented law enforcement from obtaining the plaintext of communications in only four of the 3,554 criminal wiretaps authorized in 2014! Even so, it’s a given that just as ordinary citizens use encryption, so too will criminals, and that will likely pose a challenge for law enforcement in some cases.
So we are not “talking past each other” on encryption, as Comey puts it. Rather, since he first raised this issue last October, there has been an incredibly robust debate (as reflected in this massive of recent statements and writing on the subject), directly addressing the Director’s suggestion that companies should engineer their encrypted products and services to enable government surveillance. As that debate reflects, the broad consensus outside of the FBI is that the societal costs of such surveillance backdoors — or “front doors,” as Comey prefers to call them — far outweigh the benefits to law enforcement, and that strong encryption will ultimately prevent more crimes than it obscures.
Tech companies, privacy advocates, security experts, policy experts, all five members of President Obama’s handpicked Review Group on Intelligence and Communications Technologies UN human rights experts, and a majority of the House of Representatives all agree: Government-mandated backdoors are a bad idea. There are countless reasons why this is true, including: They would unavoidably weaken the security of our digital data, devices, and communications even as we are in the midst of a cybersecurity crisis; they would cost the US tech industry billions as foreign customers — including many of the criminals Comey hopes to catch — turn to more secure alternatives; and they would encourage oppressive regimes that abuse human rights to demand backdoors of their own.
Most of these arguments are not new or surprising. Indeed, it was for many of the same reasons that the US government ultimately rejected the idea of encryption backdoors in the 90s, during what are now called the “Crypto Wars.” We as a nation already had the debate that Comey is demanding — we had it 20 years ago! — and the arguments against backdoors have only become stronger and more numerous with time. Most notably, the 21st century has turned out to be a “Golden Age for Surveillance” for the government. Even with the proliferation of encryption, law enforcement has access to much more information than ever before: access to cellphone location information about where we are and where we’ve been, metadata about who we communicate with and when, and vast databases of emails and pictures and more in the cloud. So, the purported law enforcement need is even less compelling than it was in the 90s. Meanwhile, the security implications of trying to mandate backdoors throughout the vast ecosystem of digital communications services have only gotten more dire in the intervening years, as laid out in an exhaustive new report issued just this morning by over a dozen heavy-hitting security experts.
Yesterday, Comey conceded that after a meaningful debate, it may be that we as a people decide that the benefits of widespread encryption outweigh the costs and that there’s no sensible, technically feasible way to guarantee government access to encrypted data. But the fact is that we had that debate 20 years ago, and we’ve been having it again for nearly a year. We are not talking past each other; a wide range of advocates, industry stakeholders, policymakers, and experts has been speaking directly to Comey’s arguments since last fall. Hopefully he will soon start listening, rather than dooming us to repeat the mistakes of the past and dragging us into another round of Crypto Wars.
We have already had the debate that Comey says he wants. All that’s left is for him to admit that he’s lost.
