After months of citing hypothetical crimes as a reason to give law enforcement a magical key to unlock encrypted digital messages, FBI Director James Comey has latched onto a new bogeyman: ISIS.
In a speech he gave in October 2014 as part of his coordinated push to make the case that the FBI is “going dark,” Comey leaned on examples of kidnappers and child abusers who texted details of their violent plots that law enforcement agents weren’t privy to.
But, as The Intercept reported shortly after, those examples were largely bogus and had nothing to do with encryption.
Now, in a preview of his appearance Wednesday before the Senate Intelligence Committee, Comey is playing the ISIS card, saying that it is becoming impossible for the FBI to stop the group’s recruitment and planned attacks. (He uses an alternate acronym, ISIL, for the Islamic State.)
“The current ISIL threat … involves ISIL operators in Syria recruiting and tasking dozens of troubled Americans to kill people, a process that increasingly takes part through mobile messaging apps that are end-to-end encrypted, communications that may not be intercepted, despite judicial orders under the Fourth Amendment,” Comey wrote on Monday in a blog post on the pro-surveillance website Lawfare.
While providing no specific, independently confirmable examples, Comeyhas claimed that FBI agents are currently encountering problems because of encrypted communications as they track potential ISIS sympathizers and radicals.
Comey has long argued that sophisticated encryption technology being implemented by tech giants, including Google and Apple, will make it harder and harder for the FBI to track its targets. Encryption scrambles the contents of digital communications, making it impossible for users without the “key” to read messages in plain language.
Comey has vaguely indicated that he wants tech companies to build a special entrance to communications: a specific passcode or key — or combination of keys — that only law enforcement can use, when appropriate.
Privacy and cryptology experts have come out strongly against Comey’s suggestion, arguing that encryption makes people safer, and that creating a hole in encryption for law enforcement creates a hole for criminals to go through, too.
They also note that law enforcement can thwart encryption in most cases, and can supplement investigations with traditional methods not involving surveillance.
“The FBI have been trying to argue that the internet is ‘going dark’ for several years now, and Congress has not yet bought into their propositions,” Amie Stepanovich, the U.S. policy manager for digital rights at Access, an international pro-privacy organization, wrote in an email to The Intercept. “Terrorist threats are harder to substantiate and easier to use as justifications for additional funding,” she wrote.
According to a Federal Courts report on wiretapping in 2014 published last week, law enforcement personnel at the state and federal level were only stymied by encryption on four wiretaps all year.
Neema Singh Guliani, legislative council for the American Civil Liberties Union, said she thinks that report might be a reason Comey has switched from arguing about the restrictions on federal law enforcement to focusing on the dangers posed by ISIS. “According to the report, encryption has not been a significant impediment for law enforcement,” Guliani wrote in an email. “This represents a decrease from prior years. Given this report, Comey’s prior contention that backdoors are needed for federal law enforcement needs is unpersuasive.”
Tiffiny Cheng, co-founder of Fight for the Future, a nonprofit dedicated to privacy rights, said that Comey is fueling a culture of fear that enriches both defense contractors and the agencies they support. “The U.S. government has not looked at data on efficacy to decide where the line between security and liberty should be, instead they just shoot whatever they want from the mouth in order to stay in the game,” she wrote in an email.
To the extent that Comey has mentioned any specific ISIS-related investigation, it is one that doesn’t support his argument.
In May, after two gunmen arrived at a controversial anti-Muslim exhibition in Garland, Texas, and were slain by law enforcement before they could carry out their attack, Comey publicly announced that the FBI had been tracking one of the would-be attackers, Elton Simpson, for months.
“This is the ‘going dark’ problem in living color. There are Elton Simpsons out there that I have not found and I cannot see,” he said.
But FBI surveillance didn’t stop Elton Simpson — the Garland Police Department did. The local police never got the FBI’s email, and if they had, Garland’s Police Chief Bates told NPR, the response would not have been any different: “Please note that the contents of that email would not have prevented the shooting nor would it have changed the law enforcement response in any fashion.”
Even the Pentagon has come out in favor of strong encryption. When Bruce Schneier, a widely known privacy expert and cryptographer, asked Admiral James A. Winnefeld, the vice chairman of the Joint Chiefs of Staff, about encryption, Winnefeld said, “I think we all win if our networks are more secure.”