Washington DC, (TFC)– In recent months, law enforcement and intelligence communities have downplayed the government’s surveillance capability. The last two FBI heads Christopher Wrey and James Comey are among those insisting US surveillance isn’t nearly what people fear. Meanwhile, both advocated for sweeping surveillance bills while preaching against encryption.
Christopher Wrey’s recent cybersecurity talk “The Going Dark Problem” filled media outlets with controversy. The whole thesis was to attach the phrase “public safety issue” to digital encryption. In a subtle way, Americans were again forced to weigh personal security against national security. It also wasn’t unlike another 2014 speech by former FBI head James Comey similarly denouncing encryption.
Sprinkled throughout both transcripts were various curious claims and arguments. Namely, Wrey and Comey confronted what the latter called “misconceptions in the public eye” about data collection. “We have the legal authority to intercept and access communications”, Comey said, “but we often lack the technical ability to do so.”
“We face two overlapping challenges. The first concerns real-time court-ordered interception of what we call ‘data in motion,’ such as phone calls, e-mail, and live chat sessions. The second challenge concerns court-ordered access to data stored on our devices, such as e-mail, text messages, photos, and videos—or what we call ‘data at rest.’ And both real-time communication and stored data are increasingly encrypted.”– Former FBI Head James Comey
James Comey briefly recalled the good ole’ days of electronic surveillance. “We identified a target phone being used by a bad guy, with a single carrier. We obtained a court order for a wiretap, and, under the supervision of a judge, we collected the evidence we needed for prosecution.” Modern times complicates this process with an ever-evolving plethora of devices. New apps offering encryption pop up daily, alongside increasingly secure browsers and VPN’s.
Comey claimed if a target “switches from cellular coverage to WIFI, we may be out of luck. If he switches from one app to another, or from cellular voice service to a voice or messaging app, we may lose him again. We may not have the capability to quickly switch lawful surveillance between devices, methods, and networks.”
Hone in on the keyword or phrase? Anyone? It’s “lawful surveillance”, and there’s a key difference between that and the truth. As technology evolves, so too does the capabilities and techniques employed by intelligence agencies. People are quick to cite cell site simulators which produce fake cell phone towers when discussing data collection. The full arsenal, however, will never go completely public. Even cell site simulators are still guarded secrets, and with an interesting catch.
Strict non-disclosure agreements keep knowledge of their use even from courts. It’s a condition spooking activists and journalists who fear their unregulated deployment. Police departments have been caught using cell site simulators, or StingRays, outside court approval before. That’s just one piece of tech. Leaked documents obtained by organizations like The Intercept and Wikileaks show other, ever more sophisticated means of surveillance. Taking that into account could James Comey’s comments be trusted?
“In the wake of the Snowden disclosures”, he said, “the prevailing view is that the government is sweeping up all of our communications. That is not true. And, unfortunately, the idea that the government has access to all communications at all times has extended-unfairly-to the investigations of law enforcement.” Comey stressed these operations target “suspected criminals” when approved by judges. Beliefs in an omniscient government “frustrates me”, Comey said in his 2014 talk against strong encryption. “I want people to understand that law enforcement needs to access communications and information to bring people to justice.”
While downplaying the government’s surveillance capabilities, he noted key legislation enabling mass surveillance. One bill, the Communications Assistance for Law Enforcement Act (CALEA), mandated telecommunication companies build backdoors in their infrastructure for police investigations. As Comey noted, that was 20 years ago, “a lifetime in the internet age” during which hundreds of companies have sprouted.
Fast forward to 2018, and Comey is echoed by the new FBI head Christopher Wrey. “Some have argued that having access to the content of communications isn’t necessary”, Wrey said in his recent “The Going Dark Problem” speech. “That we have a great deal of other information available outside of our smartphones and our devices; information including transaction information for calls and text messages, or metadata. While there’s a certain amount we can glean from that, for purposes of prosecuting terrorists and criminals, words can be evidence, while mere association between subjects isn’t evidence.”
Like his predecessor, Wrey used his speech to plug a more recent surveillance bill. Section 702 allows the government to monitor Americans with contacts outside the US. When Wrey gave his Going Dark Problem speech the Senate vote was still to come. They’ve since voted to reinstate the bill, including Democrats who’ve accused President Donald Trump of being connected to the Russian government. While some Americans wonder why the president’s opponents voted to give him such power, defenders say Section 702 goes “beyond politics.” Section 702, Or FISA, permits the surveillance of Americans without a warrant, and isn’t the only one of it’s kind.
So, we have two FBI heads, from vastly different administrations, using the exact same rhetoric. Can Americans take them seriously? Given what we know about the US government’s capabilities through whistle blowers, leaked documents and anonymous insiders, not really.
Not only does the government have access to a vast amount of data on individuals, but they have several routes to it. Backdoor’s aside, they can subpoena internet and social media companies for all your stored information. Emails and other messages can be intercepted, tracked, or even blocked. Fine print in everything from apps to ancestry DNA kits leaves sensitive information about you vulnerable to “third-parties.” When a heavily encrypted phone is seized, it’s more a matter of how much money and time beneath the digital underground agencies are willing to spend.
The means to which state actors can obtain and access data is endlessly evolving. Numerous pieces of legislation—some of which are likely secret—green light the analysis of this info outside a traditional legal process. Cases like an American currently being detained in Iraq for allegedly fighting for ISIS erode domestic protections against warrantless arrest and interrogation. Bills like Section 702 feed off the fears of citizens whispering to themselves “if it doesn’t affect me I don’t care”. Denying these capabilities misleads the uninformed into a state of ease. It’s a lullaby attempting to guise surveillance powers not and absent privacy as not so frightening. The surveillance state is a boogeyman that isn’t there, until it is.