DOJ continues push for encrypted comms

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The Department of Justice continues to pressure tech companies to provide workarounds for law enforcement to access encrypted apps and devices during investigations, even as DOJ officials decline to outline specific proposals that would address longstanding security and privacy concerns.

In a Nov. 29 speech at Georgetown University Law School, Deputy Attorney General Rod Rosenstein lamented the culture of lax security and first-to-market mentality that has left many commercial devices and apps insecure while also advocating for increased access for law enforcement to bypass encryption of those same devices and apps.

Rosenstein said companies "are in the business of generating profits" and that "what is good for a technology company in terms of bottom-line profits is not necessarily good for America."

However, cryptography experts have insisted for decades that giving the government what it wants will significantly degrade the overall cybersecurity of commercial products and leave companies and consumers more vulnerable to malicious hackers.

Officials from DOJ and FBI have consistently argued over the past three years that a compromise solution is possible but have not put forth specific ideas or proposals for cybersecurity experts to scrutinize. In his speech, Rosenstein did cite a proposal floated by former Microsoft executive Ray Ozzie earlier this year as one such potential compromise, but acknowledged that he does "not know whether that systems works."

FCW emailed DOJ to ask if the department has a particular technical proposal in mind or if it is consulting technical or cryptography experts to develop a solution that aligns with the principles outlined by Rosenstein and others. A department spokesperson acknowledged the request and FCW will update this story with any response.

Johns Hopkins University professor and cryptography expert Matthew Green expressed frustration on Twitter about the repetitive nature of the debate around encryption, saying that despite repeated good-faith engagement from academics, the government continues to trot out different variations of the same key escrow proposals that have been largely panned in the past for creating unacceptable security tradeoffs.

"In the current decade the U.S. government wants the same thing," said Green. "This time they're so gun shy about the near-disaster that was their last proposal, that they won't even make any suggestions. So the new talking point is 'it's not our job', let's get the eggheads to figure it out. If they can't make it work, it must be because of their politics."

In the past, DOJ has pointed to incidents like the 2015 San Bernardino shootings as examples where criminals and terrorists rely on encrypted devices to evade law enforcement. However, a former top cyber official at the FBI who worked on the case has since come out to argue that law enforcement could have gained access to the information they needed using other tools, and watchdog audits have raised questions about how hard the bureau actually worked to find other solutions.

Rosenstein said "in many cases, we will not find other ways to solve crimes" and in others it will come at "great cost in terms of harm to future victims, and expense to government agencies." Criminals, pedophiles and terrorists continue to coordinate and educate each other about how to use encryption to hide their activities.

Australia is considering far-reaching legislation uses language similar to the framing employed by DOJ officials, compelling private companies to provide law enforcement with a way to access encrypted data while also asserting that any solution must not negatively affect its security. While the proposal initially seemed fast tracked for passage into law earlier this year, it has since been opposed by the Labour party, tech companies and civil liberty groups..

In a Nov. 29 post for Lawfare, two officials from Great Britain's intelligence and security arm, the Government and Communications Headquarters (GCHQ), laid out a series of principles for gaining access to mass-scale, commodity, end-to-end encrypted services. Those principles include the notion that such access should be reserved for "exceptional" scenarios (defined by the government); that such capabilities should be transparent, avoid providing the government with unfettered access to user data and not fundamentally alter the relationship between service providers and users.

The article rules out broad key escrow proposals, calling them "a catastrophically dumb solution" to the problem, and instead proposes that companies find a way to add law enforcement as a silent participant to encrypted chats and software, while leaving open the potential for hardware alterations or access to cloud backups for seized devices.

"It's relatively easy for a service provider to silently add a law enforcement participant to a group chat or call," write Ian Levy and Crispin Robinson. "The service provider usually controls the identity system and so really decides who's who and which devices are involved -- they're usually involved in introducing the parties to a chat or call. You end up with everything still being end-to-end encrypted, but there's an extra 'end' on this particular communication."

Edward Snowden, the American contractor and whistleblower who exposed major elements of Five Eyes digital surveillance programs in 2013, called GCHQ's proposals "absolute madness" arguing that it would mean "no company-mediated identity could be trusted."

The agency "wants companies to poison their customers' private conversations by secretly adding the government as a third party, meaning anyone on your friend list would become 'your friend plus a spy,'" said Snowden on Twitter.

About the Author

Derek B. Johnson is a senior staff writer at FCW, covering governmentwide IT policy, cybersecurity and a range of other federal technology issues.

Prior to joining FCW, Johnson was a freelance technology journalist. His work has appeared in The Washington Post, GoodCall News, Foreign Policy Journal, Washington Technology, Elevation DC, Connection Newspapers and The Maryland Gazette.

Johnson has a Bachelor's degree in journalism from Hofstra University and a Master's degree in public policy from George Mason University. He can be contacted at [email protected], or follow him on Twitter @derekdoestech.

Click here for previous articles by Johnson.


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