Listening In by Susan Landau

Author:Susan Landau
Language: eng
Format: epub
Publisher: Yale University Press
Published: 2017-03-16T04:00:00+00:00

5

Investigations in the Age

of Encryption

In 1992, the FBI’s Advanced Telephony Unit issued a dire warning: law enforcement was on the verge of losing its ability to listen in. They predicted that within three years, encryption would render 40 percent of all criminal wiretaps incomprehensible. But the FBI could not have been more wrong. Encryption gained few followers in the 1990s.1

In 2010, the FBI once again warned that its ability to conduct investigations was being curtailed, this time by the complexities presented by social network sites, peer-to-peer communications systems, and—yes—encryption. According to the FBI, its wiretapping abilities were “going dark.” But, once again, the claim was a bit surprising. As Edward Snowden’s 2013 disclosures about NSA surveillance made clear, the intelligence agency had developed strategies for conducting surveillance across the globe. With the Snowden revelations in the headlines, the FBI went quiet about going dark.2

This was the background against which the FBI attempted to get a court order to force Apple to decrypt a suspected terrorist’s phone (see Chapter 1). FBI director James Comey accused Silicon Valley of promoting encryption as a “marketing pitch” without regard to the consequences for public safety or law enforcement. The 2015 San Bernardino terrorist attack appeared to give the FBI a winning court case: a horrific crime, a phone that might provide leads on coconspirators, and a private corporation that would not cooperate. The situation did not work out exactly as the FBI anticipated.3

By 2016, the question of smartphone security was no longer abstract. The public saw the issue in terms of their devices, which held their messages, email, photos, and bank account information. Even though the Apple-FBI dispute involved a terrorism case, public opinion did not favor law enforcement’s position. Favoring security over access, a number of retired senior intelligence officials quite publicly took Apple’s side in the fight.4

In less than twenty years, the Digital Revolution has transformed the way law enforcement conducted investigations. Communications now travel in different, and often more confusing, ways than they did two decades ago. The volume of communications has increased tremendously, accompanied by more detailed metadata. Digital photos, for instance, typically include the time and GPS location of when and where they were taken. Investigators—the NSA, the FBI, the Secret Service (which probes financial crimes), the Drug Enforcement Administration (DEA), and state and local police—have adapted to these new realities in various ways, with varying abilities. These differing competencies go some way toward explaining why former intelligence officials embraced the general use of end-to-end encryption and secured phones, while domestic law enforcement pointedly did not. But more than this, the split between intelligence and law enforcement in the Apple case mirrored the different ways that these communities had responded to the Digital Revolution in general.

The NSA is a signals-intelligence agency. Signals-intelligence agencies listen in; that’s their job. They may physically tap communication lines, pluck signals out of the air through radio receivers, or place satellites in space. They seek to undo communication protections, ideally in a way that

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