The #CryptoDebate is Coming: Are You Prepared?

When Apple and Google announced their plans to enable encryption by default on new iPhones and Android smartphones, they ignited a ferocious debate about whether this move was a victory for user privacy and data security or would put Americans at risk by depriving law enforcement of access to critical evidence. On Monday, New America’s Open Technology Institute will give both sides an opportunity to make their case in a debate on law enforcement vs. smartphone encryption: “Is FBI ‘Going Dark’ or in a Golden Age of Surveillance?” (You can RSVP HERE). To shed more light on the issue, we’ve put together a brief background on the debate and a bibliography of relevant articles, analyses & op-eds that have come out in since the Apple and Google announcements in September.

On one side, law enforcement advocates argue that Apple and Google’s move will exacerbate the so-called “going dark” problem that they’ve been complaining about for years, saying that the proliferation of new digital communications services and security features are frustrating investigators ability to get the evidence they need even when they have a lawful search warrant . The Attorney General and FBI Director James Comey have gone so far as to suggest that Congress may need to take action to force companies to redesign devices and online services products, so that government investigators can always access encrypted data or wiretap online communications when they have appropriate legal authority.

On the other side, technology and privacy advocates point out that smartphone encryption is good for cybersecurity and the U.S. tech economy. They argue that ensuring that law enforcement has a “secure golden key” or some other means to access encrypted communications would undermine the overall security of these devices and the data stored on them. They also argue that such a move would put U.S. companies — which are still suffering in the wake of the NSA revelations — at a serious competitive disadvantage in the global technology marketplace. Finally, they argue that weakening security in this way is unnecessary because we already live in a “Golden Age of Surveillance” where law enforcement investigators have access to more data than ever about us, our communications, and our movements than ever before.

At Monday afternoon’s debate here at New America, former FBI Counsel Andrew Weissmann will make the case for law enforcement’s interests. Weissmann served as the General Counsel for the FBI from 2011 to 2013, and is now a Senior Fellow at both the Center for Law and Security and the Center on the Administration of Criminal Law at New York University. Former White House Technology Policy czar Peter Swire will advocate for the other side, arguing for strong encryption without backdoors for law enforcement. Swire is currently a Professor of Law and Ethics at the Georgia Institute of Technology, and recently served on the President’s NSA review group. Nancy Libin, who worked for over three years as the Chief Privacy and Civil Liberties Officer at the Justice Department before joining Wilkinson Barker Knauer LLP, will moderate.

For more details and to RSVP for the #cryptodebate, visit the event page. If you see something relevant that we missed in the bibliography, please email kehl@newamerica.org.

THE #CRYPTODEBATE BIBLIOGRAPHY

Download as a PDF in reverse chronological order

Major announcements, statements, & general news coverage


“James Comey, F.B.I. Director, Hints at Action as Cellphone Data is Locked” David Sanger and Matt Apuzzo, The New York Times, October 16, 2014 http://www.nytimes.com/2014/10/17/us/politics/fbi-director-in-policy-speech-calls-dark-devices-hindrance-to-crime-solving.html?_r=0

“Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?” Remarks of FBI Director James Comey at the Brookings Institution, October 16, 2014 http://www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course

“FBI Director on Privacy, Electronic Surveillance” 60 Minutes, October 12, 2014 http://www.cbsnews.com/news/fbi-director-james-comey-on-privacy-and-surveillance/

“Holder Urges Tech Companies to Leave Device Backdoors Open for Police” Craig Timberg, The Washington Post, September 30, 2014 http://www.washingtonpost.com/blogs/the-switch/wp/2014/09/30/holder-urges-tech-companies-to-leave-device-backdoors-open-for-police/

“FBI Blasts Apple, Google for Locking Police Out of Phones” Craig Timberg & Greg Miller, The Washington Post, September 25, 2014 http://www.washingtonpost.com/business/technology/2014/09/25/68c4e08e-4344-11e4-9a15-137aa0153527_story.html

“Newest Androids Will Join iPhones in Offering Default Encryption, Blocking Police” Craig Timberg, The Washington Post, September 18, 2014 http://www.washingtonpost.com/blogs/the-switch/wp/2014/09/18/newest-androids-will-join-iphones-in-offering-default-encryption-blocking-police/

“Apple Will No Longer Unlock Most iPhones, iPads for Police, Even With a Search Warrant” Craig Timberg, The Washington Post, September 18, 2014 http://www.washingtonpost.com/business/technology/2014/09/17/2612af58-3ed2-11e4-b03f-de718edeb92f_story.html

Original Apple Announcement, “A message from Tim Cook about Apple’s commitment to your privacy.” September 17, 2014 https://www.apple.com/privacy/

Pro-crypto analyses & op-eds, or news articles with a strong positive angle


“Debating the FBI on Smartphone Encryption” Peter Swire, Future of Privacy Forum, November 10, 2014 http://www.futureofprivacy.org/2014/11/10/debating-the-fbi-on-phone-encryption/

“Issue Brief: A “Backdoor” to Encryption for Government Surveillance” Center for Democracy & Technology, November 10, 2014 https://cdt.org/insight/issue-brief-a-backdoor-to-encryption-for-government-surveillance/

“The Law Needs To Keep Up With Technology But Not At The Expense of Civil Liberties” Cameron Kerry, Forbes, November 6, 2014 http://www.forbes.com/sites/realspin/2014/11/06/the-law-needs-to-keep-up-with-technology-but-not-at-the-expense-of-civil-liberties/

"James Comey Again Demands Tech Companies Do As He Says And Grant The FBI Complete Access To Whatever It Wants” Tim Cushing, TechDirt, November 6, 2014 https://www.techdirt.com/articles/20141105/10194529056/james-comey-again-demands-tech-companies-do-as-he-says-grant-fbi-complete-access-to-whatever-it-wants.shtml

“FBI Holds Secret Meeting To Scare Congress Into Backdooring Phone Encryption” Mike Masnick, TechDirt, October 31, 2014 https://www.techdirt.com/articles/20141030/16013228988/fbi-holds-secret-meeting-to-scare-congress-into-backdooring-phone-encryption.shtml

“The 90s and Now: FBI and its Inability to Cope with Encryption” Amul Kalia, Electronic Frontier Foundation, October 29, 2014 https://www.eff.org/deeplinks/2014/10/90s-and-now-fbi-and-its-inability-cope-encryption

“Apple and Google Are Right. The FBI Is Wrong. CHiPs Nude Photo Scandal Shows Why.” Chris Weigant, Huffington Post, October 27, 2014 http://www.huffingtonpost.com/chris-weigant/apple-and-google-are-righ_b_6057928.html

“Lollipop or lockdown? Wha a secure mobile OS means for BYOD” Brian Robinson, GCN, October 24, 2014 http://gcn.com/blogs/cybereye/2014/10/android-lollipop-byod.aspx

“FBI Director Says Congress Will Fix Phone Encryption ‘Problem;’ Congress Says ‘Bite Us’” Tim Cushing, TechDirt, October 23, 2014 https://www.techdirt.com/articles/20141022/12062628910/fbi-director-says-congress-will-fix-phone-encryption-problem-congress-says-bite-us.shtml

“In Defense of Smart Phone Security by Default” Annie Antón, The Privacy Place, October 19, 2014 http://theprivacyplace.org/2014/10/in-defense-of-smart-phone-security-by-default

“Everybody Knows FBI Director James Comey Is Wrong About Encryption, Even The FBI” Mike Masnick, TechDirt, October 20, 2014 https://www.techdirt.com/articles/20141019/07115528878/everybody-knows-fbi-director-james-comey-is-wrong-about-encryption-even-fbi.shtml

“FBI’s Comey Calls for Making Impenetrable Devices Unlawful” Lauren Walker, Newsweek, October 18, 2014 http://www.newsweek.com/going-not-so-bright-fbi-director-james-comey-calls-making-impenetrable-devices-278190

“EFF Response to FBI Director Comey’s Speech on Encryption” Cindy Cohn, Electronic Frontier Foundation, October 17, 2014 https://www.eff.org/deeplinks/2014/10/eff-response-fbi-director-comeys-speech-encryption

“Do FBI’s Examples Support Encryption Worries?” (Answer: no.) Jack Gillum and Eric Tucker, Associated Press, October 17, 2014 http://bigstory.ap.org/article/e03177df2c9a4e0ebe5b584c909218bf/do-cases-fbi-cites-support-encryption-worries

“The FBI Director’s Evidence Against Encryption is Pathetic” Dan Froomkin and Nathas Vargas-Cooper, The Intercept, October 17, 2014 https://firstlook.org/theintercept/2014/10/17/draft-two-cases-cited-fbi-dude-dumb-dumb/

“Privacy Advocates Don't Buy FBI's Warning About Encryption Practices” Carrie Johnson, National Public Radio, October 17, 2014 http://www.npr.org/2014/10/17/356869566/privacy-advocates-don-t-buy-fbi-s-warning-about-encryption-practices

“FBI Director Comey calls on Congress to stop unlockable encryption. Good luck with that.” Nancy Scola, Washington Post, October 17, 2014 http://www.washingtonpost.com/blogs/the-switch/wp/2014/10/17/fbi-director-comey-calls-on-congress-to-stop-unlockable-encryption-good-luck-with-that/ (Notes Congressional wariness on issue, pro-crypto voices extensively quoted)

“Encryption Whiplash” Tim Sparapani, Application Developers Alliance, October 17, 2014 http://www.appdevelopersalliance.org/news/encryption-whiplash

“Tales from Decrypt: FBI Wants Backdoors and Ability to Compel Access” Jake Laperruque, Center for Democracy & Technology, October 17, 2014 https://cdt.org/blog/tales-from-decrypt-fbi-wants-backdoors-and-ability-to-compel-access/

“The FBI Is Dead Wrong: Apple’s Encryption Is Clearly in the Public Interest” Ken Gude, Wired, October 17, 2014 Wired op-ed http://www.wired.com/2014/10/fbi-is-wrong-apple-encryption-is-good/

“NSA Surveillance Costs and the Crypto Debate: Tech Companies Compete on Privacy Post-Snowden” Danielle Kehl and Kevin Bankston, New America’s Open Technology Institute, October 17, 2014 http://newamerica.org/oti/nsa-surveillance-costs-and-the-crypto-debate/

“The government wants tech companies to give them a backdoor to your electronic life” Trevor Timm, The Guardian, October 17, 2014 http://www.theguardian.com/commentisfree/2014/oct/17/government-internet-backdoor-surveillance-fbi

“In attack on encryption, FBI director ignores those who need protection” Jon Healey, LA Times, October 17, 2014 http://www.latimes.com/opinion/opinion-la/la-ol-fbi-encryption-apple-google-smartphones-20141017-story.html

“Fool’s Gold: Data Security is Vital to End Users” Amie Stepanovich, Access, October 16, 2014 https://www.accessnow.org/blog/2014/10/16/fools-gold-data-security-is-vital-to-users

“FBI Director Continues His Attack On Technology, Privacy And Encryption” Mike Masnick, TechDirt, October 16, 2014
https://www.techdirt.com/articles/20141016/11531128849/fbi-director-continues-his-attack-technology-privacy-encryption.shtml

“Even a Golden Key Can Be Stolen By Thieves: The Simple Facts of Apple’s Encryption Decision” Jeremy Gillula, Electronic Frontier Foundation, October 10, 2014 https://www.eff.org/deeplinks/2014/10/even-golden-key-can-be-stolen-thieves-simple-facts-apples-encryption-decision

“Crypto Wars Redux: Why the FBI’s Desire to Unlock Your Private Life Must Be Resisted” Cory Doctorow, The Guardian, October 9, 2014
http://www.theguardian.com/technology/2014/oct/09/crypto-wars-redux-why-the-fbis-desire-to-unlock-your-private-life-must-be-resisted

“As Surveillance Reforms Languish, New Tools for Consumers to Protect Data Criticized by FBI” Ed Black, Huffington Post, October 9, 2014 http://www.huffingtonpost.com/edward-j-black/as-surveillance-reforms-l_b_5958352.html

“Encryption Makes Us All Safer” Nuala O’Connor, Center for Democracy & Technology, October 8, 2014 https://cdt.org/blog/encryption-makes-us-all-safer/

“What Default Phone Encryption Really Means for Law Enforcement” Cohn, Cindy, Jeremy Gillula & Seth Schoen, Vice, October 8, 2014 https://news.vice.com/article/what-default-phone-encryption-really-means-for-law-enforcement

“Apple’s iPhone Encryption Is a Godsend, Even if Cops Hate It” Kevin Poulson, Wired, October 8, 2014 http://www.wired.com/2014/10/golden-key/

“iPhone Encryption and the Return of the Crypto Wars” Bruce Schneier, Schneier on Security, October 6, 2014 https://www.schneier.com/blog/archives/2014/10/iphone_encrypti_1.html

“Experts Laud Changes to iPhone, Android Encryption” Daniel Fisher, Threatpost, October 6, 2014 http://threatpost.com/experts-laud-changes-to-iphone-android-encryption/108708

“America’s huge iPhone lie: Why Apples is being accused of coddling child molesters” Marcy Wheeler, Salon, October 6, 2014 http://www.salon.com/2014/10/06/americas_huge_iphone_lie_why_law_enforcement_really_hates_its_new_policy/

“Stop the Hysteria Over Apple Encryption” Bruce Schneier, CNN, October 4, 2014 http://www.cnn.com/2014/10/03/opinion/schneier-apple-encryption-hysteria/index.html

“Apple and Google are Helping to Protect our Privacy” Nuala O’Connor, The Washington Post, October 2, 2014 http://www.washingtonpost.com/opinions/apple-and-google-are-helping-to-protect-our-privacy/2014/10/02/ea35524a-4824-11e4-a4bf-794ab74e90f0_story.html

“Law Enforcement Has Declared War on Encryption It Can’t Break” Dan Gillmor, Slate, October 1, 2014
http://www.slate.com/blogs/future_tense/2014/10/01/law_enforcement_has_declared_war_on_encryption_it_can_t_break.html

Room for Debate: “Apple vs. The Law” Multiple authors, The New York Times, September 30, 2014 http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law

“Smartphone Encryption Restores Public Trust in Technology” Seeta Pena Gangadharan, New America’s Open Technology Institute http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law/smartphone-encryption-restores-public-trust-in-technology

“Securing Our Data Should Come First” Alex Abdo, ACLU http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law/securing-our-data-should-come-first

“Holding On to a Small Measure of Privacy” Faiza Patel, Brennan Center http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law/holding-on-to-a-small-measure-of-privacy

“The Government Says iPhone Encryption Helps Criminals. They’re Wrong.” Timothy B. Lee, Vox, September 29, 2014 http://www.vox.com/2014/9/29/6854679/iphone-encryption-james-comey-government-backdoor

“Nine Epic Failures of Regulating Cryptography” Cindy Cohn, Electronic Frontier Foundation, September 26, 2014 https://www.eff.org/deeplinks/2014/09/nine-epic-failures-regulating-cryptography

“FBI Director Angry At Homebuilders For Putting Up Walls That Hide Any Crimes Therein” Mike Masnick, TechDirt, September 26, 2014 https://www.techdirt.com/articles/20140925/17303928647/fbi-director-angry-homebuilders-putting-up-walls-that-hide-any-crimes-therein.shtml

“Apple’s ‘Warrant-Proof’ Encryption” Steve Bellovin, SMBlog, September 23, 2014 https://www.cs.columbia.edu/~smb/blog/control/

“Old Technopanic in New iBottles” Julian Sanchez, Cato Institute, September 23, 2014 http://www.cato.org/blog/old-technopanic-new-ibottles

Anti-crypto (or pro-backdoor) analyses & op-eds, or news articles with a strong negative angle


“Tech companies are making it harder for the nation's law enforcement” Ellen Glasser, Baltimore Sun, November 6, 2014 http://www.baltimoresun.com/news/opinion/oped/bs-ed-fbi-apple-20141106-story.html

“The web is a terrorist’s command-and-control network of choice” Robert Hannigan, Financial Times, November 3, 2014 http://www.ft.com/cms/s/2/c89b6c58-6342-11e4-8a63-00144feabdc0.html#axzz3I00vaptF

“Apple, Boyd, and Going Dark” Andrew Weissman, Just Security, October 20, 2014 http://justsecurity.org/16592/apple-boyd-dark/

“Silicon Valley Enables Terrorists and Criminals” Jennifer Rubin, Washington Post, October 19, 2014 http://www.washingtonpost.com/blogs/right-turn/wp/2014/10/19/silicon-valley-enables-terrorists-and-criminals/

“Compromise Needed on Smartphone Encryption” Editorial Board, The Washington Post, October 3, 2014 http://www.washingtonpost.com/opinions/compromise-needed-on-smartphone-encryption/2014/10/03/96680bf8-4a77-11e4-891d-713f052086a0_story.html

“U.S. Law Enforcement Seeks to Halt Apple-Google Encryption of Mobile Data” Del Quentin Wilber, September 30, 2014 (Not an op-ed but incredibly slanted, all pro-law enforcement, anti-encryption quotes) http://www.bloomberg.com/news/2014-09-30/u-s-seeks-to-reverse-apple-android-data-locking-decision.html

Room for Debate: “Apple vs. The Law” Multiple authors, The New York Times, September 30, 2014 http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law

“Don’t Create Virtual Sanctuaries for Criminals” Ronald T. Hosko, Law Enforcement Legal Defense Fund http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law/dont-create-virtual-sanctuaries-for-criminals

“Data Access Shouldn’t Be Up to Companies Alone” Stewart Baker, Steptoe http://www.nytimes.com/roomfordebate/2014/09/30/apple-vs-the-law/data-access-shouldnt-be-up-to-companies-alone

“Apple and Google threaten public safety with default smartphone encryption” Cyrus Vance (Manhattan DA), The Washington Post, September 26, 2014 http://www.washingtonpost.com/opinions/apple-and-google-threaten-public-safety-with-default-smartphone-encryption/2014/09/25/43af9bf0-44ab-11e4-b437-1a7368204804_story.html

“Apple and Google’s New Encryption Rules Will Make Law Enforcement’s Job Much Harder” Ronald Hosko (Law Enforcement Legal Defense Fund), The Washington Post, September 23, 2014 http://www.washingtonpost.com/posteverything/wp/2014/09/23/i-helped-save-a-kidnapped-man-from-murder-with-apples-new-encryption-rules-we-never-wouldve-found-him/

“Apple’s Dangerous Game, part 3: Where Do You Draw the Line, and What’s the Privacy Tradeoff?” Orin Kerr, The Washington Post, September 22, 2014 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/22/apples-dangerous-game-part-3-where-do-you-draw-the-line-and-whats-the-privacy-tradeoff/

“Apple’s Dangerous Game, part 2: The Strongest Counterargument” Orin Kerr, The Washington Post, September 22, 2014 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/22/apples-dangerous-game-part-2-the-strongest-counterargument/

“Apple’s Dangerous Game” Orin Kerr, The Washington Post, September 19, 2014 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/09/19/apples-dangerous-game/

Authors:

Danielle Kehl is a fellow at New America's Open Technology Institute, where she researches and writes about technology policy issues.

Kevin Bankston is the director of New America’s Open Technology Institute, where he works in the public interest to ensure that all communities have equitable access to an internet that is both open and secure. He previously served as OTI's policy director.