Actual evidence gives lie to FBI ‘going dark’ claims

The FBI and the US government are very keen on the notion that encryption is creating ‘dark spaces’, or a ‘zone of lawlessness’ that are reducing their effectiveness at combating ‘threats to public safety’. According to official FBI testimony,

We call this capabilities gap the “Going Dark” problem. As the gap between authority and capability widens, the government is increasingly unable to collect valuable evidence in cases ranging from child exploitation and pornography to organized crime and drug trafficking to terrorism and espionage—evidence that a court has authorized the government to collect. This gap poses a growing threat to public safety.

Ooh… scary! This is just the sort of fear-mongering rhetoric that convinces an intimidated public to sacrifice up their most basic human rights to privacy for the illusory promise of ‘safety’.

Only problem is, there is almost no factual evidence that the FBI and other government agencies are in fact ‘going dark’ (other than a few highly isolated and very cherry-picked cases held up as examples, which have now been thoroughly debunked).

In fact, a new annual report published on Wednesday by the United States Courts gives lie to claims that encryption is meaningfully thwarting its investigations. The Wiretap Report 2014 shows that of 3,554 wiretaps reported as authorized in 2014, in only 22 cases did State law enforcement encounter attempts by suspects to protect their communications using encryption, and of these, only twice were officials successfully prevented from deciphering ‘the plain text of the messages’.

Federal wiretaps were a little more resistant with two of the encountered three that used encryption frustrating official attempts to read them.

Perhaps even more shockingly, the report further reveals that rather than being an ever bigger headache for the feds, encounters with encryption had fallen from 2013 by fifty percent!

‘The number of state wiretaps in which encryption was encountered decreased from 41 in 2013 to 22 in 2014. In two of these wiretaps, officials were unable to decipher the plain text of the messages. Three federal wiretaps were reported as being encrypted in 2014, of which two could not be decrypted. Encryption was also reported for five federal wiretaps that were conducted during previous years, but reported to the AO for the first time in 2014. Officials were able to decipher the plain text of the communications in four of the five intercepts.

As Electronic Frontier Foundation (EFF) attorney Hanni Fahkoury observed to Motherboard,

They’re blowing it out of proportion. Encryption] was only a problem in five cases of the more than 3,500 wiretaps they had up. Second, the presence of encryption was down by almost 50 percent from the previous year. So this is on a downward trend, not upward.

Now it is true that the FBI’s ‘Going Dark problem’ concerns encrypted data as well as encrypted communications, and that if it knows encryption is being used then it won’t bother with using a wiretap, but the figures in the report remain, in the words of Jonathan Mayer, a computer scientist and lawyer at Stanford University… ‘suggestive.’

Douglas Crawford I am a freelance writer, technology enthusiast, and lover of life who enjoys spinning words and sharing knowledge for a living. You can now follow me on Twitter - @douglasjcrawf.

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