The FBI continues to avoid playing its hand honestly in the “going dark” debate. It continues to do things like call strong encryption “warrant-proof” encryption, damning it by associating its very existence with unlawfulness. FBI Director Chris Wray continues to claim he’s not asking for encryption backdoors while calling for encryption backdoors. And for nearly two years, the FBI has refused to update its erroneous count of uncracked devices in its possession.
The last time the FBI delivered a number, it claimed it had about 7,800 devices in its possession that it couldn’t get into. After being questioned by Congress about its claims, the FBI went back to count devices and found its tracking method had resulted in a severe miscount. No real number has been delivered yet, but the early estimate was that the actual number was slightly over 1,000 devices. Not quite the apocalypse the FBI needed us (and our Congressional reps) to believe it was.
As usual, when the government fails, private citizens step in to do the work that government agencies are spending our tax dollars not doing. The DOJ and FBI have spent years hardly bothering to compile an accurate accounting of police use of deadly force, resulting in a small cottage industry of journalists, activists, and hobbyists doing the work for them.
The same thing can be said about the “going dark” narrative. The FBI loves the narrative but can’t be bothered to provide any hard data backing its assertions that encryption is destroying the criminal justice system. So, it’s left up to people like Joseph Cox and his team members at Motherboard to try to get a grip on how often device encryption is disrupting criminal investigations.
Using information gathered from more than 500 iPhone search warrants and other court records, Motherboard has compiled a database that gives readers a better idea of encryption’s impact on law enforcement investigations — a narrative stripped of all the competing narratives, if you will.
In conclusion, Going Dark is a land of contrasts:[T]he records compiled by Motherboard show that the capability to unlock iPhones is a fluid issue, with an ebb and flow of law enforcement sometimes being able to access devices and others not. The data solidifies that some law enforcement officials do have trouble accessing data stored on iPhones.
What this doesn’t answer is the question the FBI and DOJ want answered in their favor: should access to encrypted content and communications be guaranteed? Is it better for citizens to be less secure but possibly more “safe” by making encryption inherently flawed? Of course, the answer is “no,” but those at the top of the law enforcement food chain are never going to stop arguing that their lofty ideals should trump the rights and protections of all the little people below them. Only a criminal would want encryption because innocent people have nothing to hide and all of that garbage.
But Motherboard is providing a valuable service — one the government refuses to do itself: it’s providing data about the law enforcement v. encryption battle which should better inform everyone on both sides of the issue. For all of its insistence that encryption is an evil that’s not even necessary, the FBI has done next to nothing than provide a handful of anecdotes about its experience with encrypted devices. And for more than a half-decade, these anecdotes have been backed by extremely faulty numbers. Let’s hope throwing a little more reality around will bring the agency back to earth — and more in agreement with the millions of people who ensure it stays funded.
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