The Golden Age of Surveillance
November 1, 2019
Back in 2016, then-FBI general counsel Jim Baker famously fought tooth and nail to force Apple to grant the Bureau access to an encrypted phone following a terrorist attack in San Bernardino. (The FBI eventually found another way to access the data, so the legal issue was sidestepped.) Now we learn Baker has evolved on the issue in the write-up, “Former FBI General Counsel who Fought Apple Has Now ‘Rethought’ Encryption” at 9To5Mac. Writer Ben Lovejoy pulls highlights from a lengthy piece Baker wrote for the Lawfare blog describing his current position on encryption. While he stands by his actions in the San Bernardino case, he now sees the need to balance law enforcement’s need for information and the rest of society’s need to protect valuable data from bad actors. Lovejoy writes:
“Baker says that strong encryption still poses a substantial problem for law enforcement, but he now recognizes that there is no way to square the circle of protecting both personal and government data on the one hand, and allowing law enforcement to access data on the other.
‘A solution that focuses solely on law enforcement’s concerns will have profound negative implications for the nation across many dimensions. I am unaware of a technical solution that will effectively and simultaneously reconcile all of the societal interests at stake in the encryption debate, such as public safety, cybersecurity and privacy as well as simultaneously fostering innovation and the economic competitiveness of American companies in a global marketplace.’
“He says that forcing US companies to create compromised systems would simply shift demand to foreign-made products that remain secure. Additionally, a lot can be done with metadata- that is, records of who contacted who, rather than what was said.
‘Further, the situation for law enforcement may not actually be as bad as some claim. In fact, some argue that society is in a “golden age of surveillance” as substantially more data- especially metadata- than ever before is available for collection and analysis by law enforcement.’”
“Golden age of surveillance” indeed—the man has a point. He stresses, in particular, the importance of avoiding potential spyware in Chinese-made equipment. He urges government officials to embrace encryption as necessary or, if they refuse to do that, find another way to guard against existential cyber threats. He observes they have yet to do so effectively.
Cynthia Murrell, November 1, 2019
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