Intelligence community pushes back on encryption report

Intelligence community pushes back on encryption report
© Greg Nash

The U.S. intelligence community is pushing back on a Harvard report that has become a touchstone in the Capitol Hill debate over encryption.

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“The public debate about the appropriate scope of lawful access to encrypted communications ... must be informed by recognition that the increased use of encryption represents a significant impediment to our efforts to protect the nation,” Deirdre Walsh, legislative affairs director in the Office of the Director of National Intelligence, wrote in a letter to Sen. Ron WydenRonald (Ron) Lee WydenHillicon Valley: NYT says Rosenstein wanted to wear wire on Trump | Twitter bug shared some private messages | Vendor put remote-access software on voting machines | Paypal cuts ties with Infowars | Google warned senators about foreign hacks Overnight Health Care: Opioids package nears finish line | Measure to help drug companies draws ire | Maryland ObamaCare rates to drop Google says senators' Gmail accounts targeted by foreign hackers MORE (D-Ore.).

Wyden had demanded feedback on the report, produced by Harvard’s Berkman Center, during a February hearing on the topic. Titled “Don’t Panic,” the study suggests that law enforcement will be able to turn to alternative data streams in order to conduct needed surveillance.

"Are we really headed to a future in which our ability to effectively surveil criminals and bad actors is impossible? We think not," the report reads. 

But according to Walsh, the report underestimates the risk posed by terrorists and other criminals who do what has been termed "going dark." 

The spread of easy-to-use commercial encryption has largely divided law enforcement and the technology industry. While the government has argued that the technology hampers investigations, tech experts say it is needed to keep everyday users of the Internet safe from identity theft and fraud.

The divide exploded into the public consciousness this spring, when Apple refused to help the FBI unlock the iPhone of San Bernardino shooter Syed Rizwan Farook, citing privacy and security concerns.

Walsh calls out three findings from the Berkman Center report as “incorrect”: that strong encryption should not be a concern for government since so much data remains unencrypted; that the impact of encryption will be lessened because the government will still be able to obtain metadata; and that the Internet of Things will provide the government new and fruitful avenues to surveil targets.

She argues that because transparent and easy-to-use encryption has given criminals and terrorists a “safe haven” to conceal illegal activities, law enforcement is “losing access to the one area that we care about the most — the content of communications of violent criminals and terrorists.”

Further, she writes, it is “simply wrong” that metadata can mitigate the loss of that content.

“While metadata is a valuable source of information, it does not replace the definitive value of content, such as when we can intercept two terrorists agreeing on a time, place and method of attack,” she writes.

Finally, she says, “it is difficult to see how information obtained from a refrigerator, a washing machine, or a child’s toy could mitigate the impact of the loss of the content of communications between two terrorists describing their plans and intentions to attack to attack the United States.”

Several legislative proposals dealing with encryption are circulating in both chambers.

A controversial draft proposal from the leaders of the Senate Intelligence Committee would require companies to provide “technical assistance” to government investigators seeking locked data.

Another proposal, from House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark WarnerMark Robert WarnerKey House Dem's objections stall intel bill as deadline looms Russia docs order sets Trump on collision with intel community Hillicon Valley: North Korean IT firm hit with sanctions | Zuckerberg says Facebook better prepared for midterms | Big win for privacy advocates in Europe | Bezos launches B fund to help children, homeless MORE (D-Va.), would establish a commission to study the subject.

A working group of lawmakers from the House Energy and Commerce and the Judiciary committees is also examining the issue.