Exploring Encryption and Potential Mechanisms for Authorized Government Access to Plaintext Proceedings of a Workshop (2016) / Chapter Skim
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3 Session 1. The Current Encryption Landscape
3 Session 1. The Current Encryption Landscape
Pages 3-12
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Naval Academy, and former deputy director of the National Security Agency (NSA) ; Patrick Ball, director of research at the Human Rights Data Analysis Group (HRDAG)
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As an illustration, Ball described his own experience with the development of Martus, a free, opensource, secure tool designed to enable human rights workers to safely collect, encrypt, and store information that a government could view as threatening. Martus is one of many open-source encryption products available for human rights groups to use to protect activists from government violence and repression.
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In his view, the FBI focuses its messages on terrorists and kidnapping scenarios while ignoring "far more numerous acts by government agents that affect everyday Americans." The responsibility for investigating police homicides can fall to journalists and civil society, whose efforts can also be protected by strong encryption.4 Ball expressed his belief that mechanisms for exceptional access by government would increase the amount of government surveillance without making any of us any safer, and that the downsides of this increased surveillance would be experienced most acutely by vulnerable populations. He pointed to an argument articulated by Black Lives Matter activist Malkia Cyril that encryption is necessary for civil and human rights to prosper because it protects the democratic right to organize for change.
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Recognizing that the government has argued and will continue to argue that encrypted data without exceptional access impedes legitimate investigations against "heinous perpetrators," he urged the audience to focus on the big picture, arguing that exceptional access would help the FBI solve only a small number of cases compared with the great benefits of strong encryption for civil society globally. In addition, he posited that if given a "golden key," the FBI could use the key, or intelligence gathered using it, as a bargaining chip in discussions with other countries' law enforcement agencies, thus undermining the security of human rights workers abroad in order to support what he described as the FBI's short-term interests.
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DISCUSSION Panelists and other invited speakers engaged in an open discussion of the encryption landscape, moderated by Fred Cate. Law Enforcement Capabilities and the Costs of Encryption Cate opened the discussion by asking Baker to clarify his statements about the costs that encryption has for investigations.
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Inglis expressed his agreement with Baker's assessment of the FBI and its values and also agreed with Ball's arguments about the importance of encryption and other security tools for protecting individuals in the context of human rights. He then responded to the question of whether exceptional access is fundamentally different from other tools that the government has at its disposal.
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Context Dependence of Government Needs and Obligations Orin Kerr, the Fred C Stevenson Research Professor of Law at the George Washington University Law School and workshop planning committee member, suggested that different solutions -- and perhaps different levels of international coordination -- might be warranted when dealing with encryption for national security purposes, as opposed to in the context of law enforcement, pointing out that there are three main contexts for government exceptional access: intelligence gathering for national security, federal criminal investigations, and state and local 7 K
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Inglis observed that certain aspects of a potential international effort in this arena are likely to work much better in the context of law enforcement than in the context of national security or national intelligence, where countries inherently have different needs and goals. Inglis went on to say that, at the national level, law enforcement and intelligence agencies have different standpoints on encryption, owing to their different missions, and citizens might feel more comfortable granting certain authorities to one than to another.
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Inglis expressed his belief that this debate is important enough to make it worth going beyond what seems practical and exploring the realm of what is possible. Looking to the architectures already in use by Google and cloud computing services that will essentially give a user exceptional access if they lose their key or that give a company exceptional access for business purposes, he posited that such systems might represent an approach that has proven secure enough (while providing some forms of exceptional access)
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He said that these costs are difficult to quantify. Ball noted that "everyone thinks they're the good guy," warning that believing one is working toward a good and higher purpose can at times lead people to choose means that are unsavory because they seem justified by the ends.
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