Security hawks in Congress have been sounding the alarm about the “going dark” phenomenon, or the ability of ne’er-do-wells using encrypted devices to escape surveillance by law enforcement officials. Yet in spite of the clamboring by a few, the majority seem to be listening to an increasing number of experts who suggest it’s more “light” out now than ever before.
“Surveillance is getting easier,” tech executive Mark Cuban told the Washington Examiner, saying that technological advances were rapidly “opening new means of surveillance.”
Cuban is the billionaire tech investor behind Cyber Dust, a messaging application employing end-to-end encryption, which enables users to communicate without being surveilled by intelligence officials, or even by those behind the technology. That’s the sort of encryption that causes some lawmakers to fret about malefactors “going dark.”
“Apple, Google and other companies have recently made this level of encryption the default setting on many phones and operating systems,” Senate Armed Services Chairman Sen. John McCain, R-Ariz., wrote in a Feb. 5 editorial for Bloomberg. “The result will be digital crime scenes to which law enforcement has no access.”
Cuban suggests the premise of that assertion is flawed, and that weakening technology would hurt law-abiding Americans more than anyone else. “Any tool that can be used to protect our liberty and freedom from oppression can be used by bad actors,” he said. “There are far better ways to offset the risk than trying to cracking encryption.”
Congress is increasingly moving in Cuban’s direction. Legislation authored by House Homeland Security Chairman Rep. Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va., would establish a commission on the “going dark” issue. More broadly than looking at encryption alone, it would look at the ability of evildoers to hide in any of what McCaul refers to as “dark spaces” existing beyond the view of law enforcement.
And while McCain did express strong disapproval with the state of today’s technology, he is refusing to call for an outright ban. He is merely calling for a dialogue, his office clarified to the Examiner, not a particular legislative solution.
In a sense, that’s a fairly remarkable statement from one of the Senate’s staunchest national security advocates. It also strikes a contrast between McCain and two colleagues who are often like-minded on security issues, Senate Intelligence Committee Ranking Member Dianne Feinstein, D-Calif., and Chairman Sen. Richard Burr, R-N.C. Those two began advocating for some form of law prohibiting encryption in early December.
The debate took on added import last week, when a federal judge ordered Apple to help officials try to access the contents of an iPhone that belonged to one of the perpetrators of the Dec. 2 terrorist attack in San Bernardino, California. After Apple said it would appeal the ruling, Burr announced that he would propose legislation to impose penalties on companies that refuse to comply with such requests.
That proposal may be the best that those who fear things are “going dark” can hope for.
“I don’t think an outright ban on encryption is likely,” Michael Fertik, an Internet entrepreneur and Harvard Law grad, told the Examiner. Besides that, he pointed out, “There are new technologies, like your toaster, that can listen to you. Your phone camera can be turned on. Your phone can have a keylogger that allows intelligence officials to exploit your device.
“The opportunities for people to mess up are proliferating, and the opportunities for bad guys to get caught are proliferating faster than the number of ways to cover their tracks,” he added.
Cuban concurred, saying, “The lack of technical knowledge in D.C. is a huge problem. Encryption is open source. You can’t ever put it back in the bag.” If it were to be banned, he said, “there will be sensors and cameras and drones watching us in so many ways every day, people will welcome encryption back as a way to protect their privacy.”
Fertik suggested that the value of even a congressional commission was questionable. “I don’t know that a blue ribbon panel, which will be as unimaginatively constructed as any government panel, is the solution either.
“But,” he added, “it’s probably the lesser of two evils.”
