More on the Going Dark Debate

Lawfare is turning out to be the go-to blog for policy wonks about various government debates on cybersecurity. There are two good posts this week on the Going Dark debate.

The first is from those of us who wrote the "Keys Under Doormats" paper last year, criticizing the concept of backdoors and key escrow. We were responding to a half-baked proposal on how to give the government access without causing widespread insecurity, and we pointed out where almost of all of these sorts of proposals fall short:

1. Watch for systems that rely on a single powerful key or a small set of them.

2. Watch for systems using high-value keys over and over and still claiming not to increase risk.

3. Watch for the claim that the abstract algorithm alone is the measure of system security.

4. Watch for the assumption that scaling anything on the global Internet is easy.

5. Watch for the assumption that national borders are not a factor.

6. Watch for the assumption that human rights and the rule of law prevail throughout the world.

The second is by Susan Landau, and is a response to the ODNI's response to the "Don't Panic" report. Our original report said basically that the FBI wasn't going dark and that surveillance information is everywhere. At a Senate hearing, Sen. Wyden requested that the Office of the Director of National Intelligence respond to the report. It did -- not very well, honestly -- and Landau responded to that response. She pointed out that there really wasn't much disagreement: that the points it claimed to have issue with were actually points we made and agreed with.

In the end, the ODNI's response to our report leaves me somewhat confused. The reality is that the only strong disagreement seems to be with an exaggerated view of one finding. It almost appears as if ODNI is using the Harvard report as an opportunity to say, "Widespread use of encryption will make our work life more difficult." Of course it will. Widespread use of encryption will also help prevent some of the cybersecurity exploits and attacks we have been experiencing over the last decade. The ODNI letter ignored that issue.

EDITED TO ADD: Related is this article where James Comey defends spending $1M+ on that iPhone vulnerability. There's some good discussion of the vulnerabilities equities process, and the FBI's technical lack of sophistication.

Posted on May 13, 2016 at 6:55 AM • 55 Comments


de La BoetieMay 13, 2016 8:12 AM

To be fair to Matt Tait, I think he was well aware of the deficiencies, but felt it was a "better" evil to that of unrestrained bulk "equipment interference".

SIR David Omand, ex-head of GCHQ "threatened" that bulk hacking as a response to increased use of encryption and hardening, and it is a major part of the UK Investigatory Powers Bill (along with unaccountably forcing companies to weaken their products).

As a citizen and technologist, I wouldn't spend any time at all trying to technically cooperate with LE while they persist in the extremely damaging triumvirate of mass surveillance, bulk automated hacking, and "exceptional access". The first two have to go before it's ethical to be dreaming up even half-baked solutions to the exceptional access issue.

In item 6 of the your group article, regarding rule of law, why is there not a statement that the bulk surveillance and hacking is a de facto assault on the rule of law? The sanctimonious attitude of the nations subverting it stinks.

emanMay 13, 2016 9:00 AM

Some sites don't seem to even require backdoors.

Here's an example:

Intimate Data of 70,000 OKCupid Users Released

The (very) personal data of 70,000 members of the dating site OKCupid has been released – not by hackers, but by university researchers.

The information includes everything from sexual turn-ons to drug use. And while it doesn’t identify individuals by name, it does include usernames – which may well be enough to make it possible to work out users’ real identities.

Danish researchers Emil Kirkegaard, Oliver Nordbjerg and Julius Bjerrekær, all associated to a greater or lesser degree with Aarhus University, collected the data by scraping the site – arguably, perfectly legitimately.

The researchers have posted this data on the Open Science Framework website at

Sowing NarcMay 13, 2016 9:49 AM

Lets get real. "Going Dark" is simply a misdirection tactic to distract you from the massive electronic land grab already underway. Further, we don't need another Snowden to surmise they have already hacked all IoT and are using it already in secret. Salon nails it:

Security officials keep the public focus on the limits of surveillance rather than on its excesses; at the very same time, the frequent exposure of new surveillance capacities perversely functions to normalize those excesses. If widespread surveillance is ordinary, it cannot be shocking. Instead, the anomaly becomes whatever surveillance capability lies just beyond law enforcement’s capability or authorization.


Particularly concerning is the possibility that law enforcement is secretly tapping into the so-called Internet of Things, the now standard consumer goods connected to the web—televisions, refrigerators, cars, watches, toys, alarm systems—which often capture audio and video. The possibility that these devices could be hacked or tapped is very real: Samsung has warned users of its smart TV that “spoken words” including “personal or other sensitive information…will be among the data captured and transmitted to a third party.


The police can look through walls and might be tapping your television, but security officials are still freaking out about dangerous people “going dark” on their encrypted iPhones. It appears to be “pure misdirection,” as Natasha Lomas writes at TechCrunch, geared to facilitate a “landgrab” of “as much access to data as possible…narrowing the debate to focus on specific technologies such as end-to-end encryption makes sense as a way to distract attention from other potential surveillance avenues, such as IoT and location metadata.”


Law enforcement’s approach to Stingray, however, sets a disturbing precedent, suggesting that new surveillance devices will be deployed clandestinely as part of a legal strategy seeking to minimize the harm of future adverse rulings by lengthening a given technology’s period of ungoverned secrecy to the maximum.

If you really want them to go dark, then use person-person speech without devices involved (or present), and save all of life's banalities for the Internet and phones, so the IC is literally wading in electronic shit.

Clive RobinsonMay 13, 2016 10:02 AM

@ Bruce,

Although we call this Crypto-Wars II, it's actually about the sixth or seventh battle in a war that started prior to the call for DES proposals.

That is various intelligence or law enforcment agencies in their respective communities keep trying for "over-reach" on their powers or to get new powers, often by hyped up FUD with the four horsemen of the --supposed-- existential threat they can use as sound bites.

Unfortunatly each time the push three steps forwards, we start to rally public supporr etc but only ever manage to push them back a couple of steps... Then they wait for things to die down and push again, each time we steadily lose ground to them and society like the frog in the pan slowely gets cooked without hopping out of the hot water.

So our aim should not just be to stop the likrs of Comey in the US and May in the UK, but to actually push back so they have to repeal or ammend previous legislation. Which will be an altogether more heated fight, probably with real blood being drawn as is often the case in both the US and UK.

But as has been noted by wiser heads in the past, it needs the blood of both tyrants and patriots to refresh the tree of liberty, because we have sleepwalked through lack of eternal vigilance into our current loss of freedoms and withered liberty.

Comrade MajorMay 13, 2016 10:28 AM

What's interesting about all this debates is that they talk only about how to legalize stuff. I mean, more laws to preserve so-called "privacy" (whatever this means).
But, they don't talk about technical countermeasures to this so-called "surveillance".

Another interesting thing is so-called "anonymity". In this days anonymity can't exists - everyone knows everyone (or may know, at least).
What they should discuss is techniques to mask presence. So that you wear "mask" (not Fawkes mask, of course), and do your business. Doing such thing is criminal in many cases.

Expecting that state+corporations will play by the law is stupid and naive.

BTW, I think the only thing we can do in this situation is to overload NSA+corps systems with information.

And hack this InternetOfTargets of course. If this system is exploited by govs+corps, then we (people) must also exploit it.

If you help building secure systems - you helping corporations, but not people. I hope, that you are paid for this, at least.
If you aren't paid - then you are just a useful idiot.
Its cynical, but true.

Grammar ErrorMay 13, 2016 10:30 AM


A small point;

"...and the FBI's technical lack of sophistication."

should read:

and the FBI's lack of technical sophistication.

The first suggests that their lack of sophistication is an inconsequential technicality whereas the second makes it clear that they are lacking in technical ability.

KALMay 13, 2016 10:43 AM

All these laws and bills and discussions assume for some reason that the government/law-enforcement is "good". Where does that assumption come? All evidence suggests that they, in the majority of cases (in all countries), are precisely the people we SHOULD be encrypting against.

Renata TorbeckMay 13, 2016 11:20 AM

"Lawfare is turning out to be the go-to blog for policy wonks about various government debates on cybersecurity."

If you're using Tor, don't bother. Blocked by Cloudflare.

malkochMay 13, 2016 11:50 AM

As indicated earlier by others, the discussion assumes that LE is honest and law abiding. But they are not. Our privacy must be protected against government intrusion and abuses. The governments can not be trusted. The second point is the use of tools developed by third parties. I am sure there will be third party encryption tools without backdoors available for anyone who wants to hide their data. Is that going to be illegal?

Comrade MajorMay 13, 2016 12:04 PM

Is that going to be illegal?
Not important. As Dr. House said "I don't break laws. I ignore them". This is the reality we live today.
BTW, in totalitarian/authoritarian regimes its much worse than in US and Europe.
So, stop whining.

Comrade MajorMay 13, 2016 12:24 PM

I need to clarify something in my post above.
By "ignoring laws" I mean ignoring laws against using cryptography etc.

albertMay 13, 2016 1:13 PM

Cloudflare isn't listed in NoScript. Lawfare seems to run fine without any scripts enabled. (I don't use Tor)
. .. . .. --- ....

Comrade MajorMay 13, 2016 1:31 PM

Another very important thing you should know: CALEA was expanded to Facebook/iTunes/google etc.
Yes, they are now "carriers". This means, that they now obliged to assist LE if requested. Carriers that operate in US jurisdiction will provide all data/metadata they have to LE when requested.

So, when someone talking about how secure Telegram is... you know its a bullshit.

And its just make no sense to use smartphone with Signal to make secure (what this means?) calls.

Whats worse is that using such tools can lead to a targeted attack. The NSA/FBI/LE will be able install trojan specifically to your device.
Security researchers will not know about it, because its a targeted attack. This means that this attack probably will be undetected.
James Comey is happy.

I believe here is talk about CALEA expansion:
mp3 file:

malkochMay 13, 2016 2:31 PM

@Comrade Major
I really do not care what Dr. House said whoever he is. Breaking bad laws is the best form of protest and disobedience. I am not also so sure about USA being better than "totalitarian/authoritarian" regimes. USA has a deeper and longer reach than most. That makes USA more dangerous. Most people on Earth do not have the protections provided by so called "Constitution" protecting US citizens to some degree.

albertMay 13, 2016 2:47 PM

'Dr. House' was a fictional character in a very popular US TV series (called, interestingly enough, "House"). A brilliant diagnostician, he was addicted to pain killers, having been partially crippled after being shot by his wife. A flawed, yet fascinating character.
. .. . .. --- ....

DanielMay 13, 2016 3:20 PM


Lawfare and Cloudflare.

Usually it's not the website itself that blocks Tor but their hosting provider. So maybe Bruce can shoot an e-mail over to the blog and see if they can't get that changed. Off the top of my head, I can't think of any good reason why Lawfare itself would want to block Tor users.

Davi OttenheimerMay 13, 2016 3:42 PM


Sounds about right. Your comments remind me of the Magna Carta. What are formal limitations on feudal payments to the crown if not a foreshadowing of limitations on data to the collection systems (private or public)?

Also need to talk with you about side-channel electromagnetic (EM) emanations attacks. Send me a note if interested.

MiddleONoWhere texasMay 13, 2016 4:47 PM

So if I'm reading everything right, all of the three letter agencies are complaining about going dark while perfecting their night vision goggles.

Can You Guess My NameMay 13, 2016 11:53 PM

In recent months, law enforcement, led by FBI Director James Comey, has waged war against the “going dark” problem—criminals using secure communications technologies, particularly encryption, to evade justice. Its solution to this problem is to encourage or require technology companies to build in back doors to allow the government to circumvent, say, encryption on your iPhone. But in reality, we are currently in a golden age of surveillance. The “going dark” argument should not be used as a reason to support back doors or other special access by law enforcement to encrypted communications.

(I mean, at least you have never had your name be used in the very ugly imagination of a very backwards populace... they get the whole thing about dying right. But, they leave out the rest of the story. 'Oh ..., do not celebrate because...'.)

(But everyone needs a scapegoat, huh.)

rustic chardMay 14, 2016 6:51 AM

You've probably heard about the controversial OKCupid data injudiciously used by a few Danish students in an otherwise unremarkable research article (

Well, the Open Science Framework (OSF), where it was hosted, has quietly removed the paper from its index. The original URL ( now leads to an empty page with the message "Unavailable For Legal Reasons. This record has been suspended."

The university (Aarhus) has wasted not time in distancing themselves from their students, claiming the university has nothing to do with this problem and suggesting they might even sue their own students for using the university's name in the research paper.

It never gets boring watching shit hit the fan.

Anon10May 14, 2016 11:27 AM

I think the Landau report is somewhat dishonest. Yes, various former government officials have agreed with her that metadata has value. However, Susan Landau doesn't want the government to have access to either metadata or content. This is clear from her reaction to several now officially acknowledged government metadata programs.

Anon10May 14, 2016 1:44 PM

It's also ironic that Landau accuses the ODNI of setting up a straw man argument, when the keys under the doormat group that she's part of does the same thing. Watch for the assumption that human rights and the rule of law prevail throughout the world. No one, especially not the FBI or the US IC, has ever claimed or assumed that all countries follow the rule of law or respect human rights.

Nick PMay 14, 2016 2:05 PM

@ Anon10

Not sure but I think that's an implication of adding L.E.. Our side says adding it for U.S. government means most others will demand same access for phones in their jurisdiction. Organized crime, terrorism, and so on are big in some of them. Plenty of corruption and human rights abuses. So, government is saying we need L.E. for safety of people but adding it will almost certainly harm people in other jurisdictions that demand it.

So, making backdoors a new requirement internationally to protect people certainly assumes human rights and rule of law prevail around the world. Or explicitly doesn't give a shit about the safety of a good percentage of them.

Anon10May 14, 2016 3:55 PM

So, making backdoors a new requirement internationally to protect people certainly assumes human rights and rule of law prevail around the world.

This is only true if you are making all of the following assumptions:
1) That US cares about the plight of Uganda dissidents at all.
2) To the extent that dissidents are important, that they somehow outrank all other US national security and economic priorities.
3) That dissidents are or will be protected by the absence of US mandated backdoors. If metadata is half as useful as Landau claims and a country can practice rubber-hose cryptanalysis, their domestic security service can find out everything they want to know without help from Western IT service providers. Historically, some countries have had very aggressive domestic security services that were very effective at infiltrating dissident groups. The problem with cryptographers is they assume every problem begins and ends with cryptography, instead of being a subset of the broader issue.
4) That dissidents can't change to more secure communication methods. The argument is usually that terrorists and criminals will switch to more secure communications, rendering the backdoors ineffective. Why can't dissidents do the same?
5) That someone the rest of the world waits on the US before demanding IT companies conform to their laws. Read about Russia and SORM or China and WAPI.

All of those assumptions are debatable on their own. Taken together, I think they're crazy.

Clive RobinsonMay 14, 2016 5:33 PM

@ MiddleONoWhere texas,

You missed an opportunity, if you had said,

    ... the three letter agencies are complaining about going dark while perfecting their night vision googles.

You would have probably got a "+1" ;-)

Sancho_PMay 14, 2016 6:03 PM

@Anon10, Nick P

I my feeling this part of the discussion is too narrowly seen from US soil only. It isn’t appropriate in regards to the huge importance of the american role model in our world.
Let’s try to get some distance, let’s beam us to India, Russia, China.
Or into the mind of the average Spanish citizen.

Since the time of Woodstock and Easy Rider we see the US as the country of freedom, liberty, prosperity. United people, well educated, wealthy and free to move, think and speak.

Our Gods.

We never had that liberty (see Gen. Franko).

Now you come and strike down on exactly that part we are missing from liberty:
The "right" to be left alone.
The "right" of privacy.

Jesse ThompsonMay 14, 2016 6:16 PM

Has anybody else noticed that Ron Wyden's office is always seen taking bold and mature positions on both security and government transparency? I mean, out of 535 people in congress how come you never see any other specific individual leading that charge?

Does anybody have any negative points to share about Wyden in the context of security, encryption, or government/corporate transparency just to make sure I'm not getting bubbled?

And in the case that nobody has anything substantially negative or mitigating to offer, then why isn't Wyden facing down the likes of Trump and Clinton for the Presidency? :P

go2nullMay 15, 2016 7:39 AM

Re: Tor and Cloudflare

Lawfare should be able to not block Tor users.

"We relented a few weeks ago and allowed our customers to specify rules that apply to traffic from the Tor network, but we came up with a compromise to prevent the damage from full blacklisting. We now allow our customers to treat Tor the same way as we do traffic from a country (country code “T1” to be specific). Just like with countries, traffic can be whitelisted by anyone, but we don't allow our self-service customers to fully blacklist traffic. Customers can force traffic to see a CAPTCHA, but they can't block traffic entirely. However, the choice of how to handle Tor is now in the hands of individual site owners.

see also:

Cliff VosslerMay 15, 2016 10:21 AM

I suspect Sancho_P is as Spanish as Donald Trump. Franco is spelled with a c, not a k, and I can assure you the first thing that comes to mind to the average Spanish person when you mention Americans is NOT gods of freedom and educated middle class role models.

Clive RobinsonMay 15, 2016 11:17 AM

@ Anon10,

I think the Landau report is somewhat dishonest.

Dishonest in what way? Or are you just throwing in FUD for the sake of lack of standing for your further arguments?

However, Susan Landau doesn't want the government to have access to either metadata or content.

I don't want the US gov have accsess to either of mine, it's none of their business, and if I reciprocated against the politicos LEO's or other US citizens they would hunt me down with extream prejudice.

You are in effect using the "nothing to hide" argument, well perhaps you should explain why I cannot reciprocate "have they something to hide?"

Thus Susan Landau's position is actually quite reasonable when considered in general. It's idiot's effectively trying to confirm "American exceptionalism" that create the problems and line up like most authoritarian followers behind nonsensical argument as the Tea Party amongst many others have demonstrated.

Anon10May 15, 2016 1:24 PM


Dishonest in what way?
I think if Susan Landau got everything she asked for, on metadata and content, the FBI actually would go dark. Whether that is good or bad, is another issue. If you say the FBI will be just fine with metadata, without addressing how your proposals elsewhere would affect their access to metadata, you're certainly obfuscating the issue.

Nick PMay 15, 2016 2:30 PM

@ Anon10

Here's one: get a warrant for it that justifies its collection. Remember that the FBI and NSA are arguing for massive, warrantless, metadata collection that will make us safer combined with magic algorithms while never being abused. Whereas, our collective stance is that they get no metadata or data by default unless a judge agrees there's a need then issues specific authorization and/or constraints for obtaining it. It's not a "FBI gets zero permanently" or "FBI gets everything permanently" situation. There's a middle option that was the default for decades with no harm to FBI's activities.

Remember that the official reason 9/11 happened, which we beat out of them, was that they failed to share data they already had across the board due to politics and incompetence. The very reason for the Patriot Act required no new authority. The incompetence and subsequent abuses were never punished. So, reasonable stance is to give them nothing because they don't need it and will abuse it.

Bumble BeeMay 15, 2016 2:36 PM

Regarding three-letter agency complaints of "going dark."

What do you expect? It's their own souls that went dark. They're baby boomers. That wicked and perverse generation who worshipped the devil, dodged the draft, lost the Vietnam War, went on marijuana and other teratogenic psychedelic drugs, had wild orgies and sex parties in their drug-addled state, enacted "gun control," and continued to lie, cheat, and steal throughout their lives to cover up their crimes even to the point of murders and death threats to silence their own children.

Now in their old age they can make confession in a dark booth riddled with hidden microphones and listening devices.

— Signed, Love child of a baby boomer

Anon10May 15, 2016 3:25 PM

@Nick P

I slightly disagree with you about 9/11. I think the biggest part of the FBI failure was the DOJ lawyers wouldn't let the intel side of the FBI talk to the criminal side of the FBI.

Sancho_PMay 15, 2016 5:01 PM

@Cliff Vossler,

Good point, Hillary and Trump being the top candidates for the U.S. presidency has already changed the world’s view of the America(n)s.

Nick PMay 15, 2016 5:16 PM

@ anon10

Originally, they said they had no way of stopping it. Then, their own agents sued them over Able Danger. We found that they were on top of terrorists then just didn't do their job. So, I think there's more to say about FBI failure than intel sharing.

Anon10May 15, 2016 10:20 PM

@Nick P

Here's one: get a warrant for it that justifies its collection. ... There's a middle option that was the default for decades with no harm to FBI's activities.

If you're arguing for a warrant requirement for metadata, that's not the case nationally and certainly wasn't the "default for decades." The US Supreme Court has never ruled that metadata collection requires a warrant, and if it did so, that would be historically unprecedented.

Clive RobinsonMay 16, 2016 12:42 AM

@ Anon10,

If you're arguing for a warrant requirement for metadata, that's not the case nationally and certainly wasn't the "default for decades."

That is because untill very recently it was not called meta-data.

Prior to the rise of the internet, most people communicated via "circuit switched" systems and were billed for the length of time the circuit remained "connected" or "UP" depending on the type of circuit (dial / leased line). That is the "billing record" was the only "meta data" collection, unless a "pen register" wire tap was used.

In most WASP jurisdictions access to "billing records" required a formal proceadure to be activated as did getting authority to install a pen trace at the CO to record dialed numbers. Over and above the effort to get the authority was the effort to get the data and make it usable. This effort had a direct corelation with "man power" and thus had a labour cost implication that acted as a considerable constraint on the use of such collection. Also having humans involved in large numbers made such proceadures very visable to many people thus there was a form of "natural oversight" acting as a limiting factor as well.

But technology removes manpower and cost, thus the proceadures became cheaper, and the likes of CALE came along. But there was still an inbuilt limitation, which was firstly the number and type of leased lines that LE's could afford and secondly and more importantly how many and what type of LE leased line each switch could support. The law only required one per switch and due to technology cost constraints it was usually just a single bearer channel line. Which created a bottle neck constraint on LE.

It was this sort of technology cost constraint which ment switch designers did not design switches to do anything other than the minimum the telcos would pay for that caused issues in the IC that wanted to do "covert bulk collection" on country entrance and exit points. Various countries went different ways, but back in the 1960's through to the 1990's much of the "national trunk" backbone was via microwave link and national entry points for most WASP countries was via undersea cable, satellite or microwave link which all acted as "choke points" where "collect it all" was a realistic posability. Thus the equipment was designed to get at this "trunk data", much of it by the technical side of the Five Eyes IC working in collaboration with select technical directors and managers in "trusted" telecoms manufacturers. Thus most of the design work appeared to those doing it at lower levels as a normal project development or modification to existing systems. A few of us involved with it smelt a rat but if you talked about such posabilities you found that you got moved on to either other projects, other roles or even finding new employers... Back then these directors and managers were a hang over from WWII and had a "supporting the nation in a crisis" mentaliry as well as an open pocket for the largesse of government that peaked in the 1980's with Ronnie "Raygun" and "Mad Maggie" Thatcher.

Thus the IC had it's "collect it all" technology and the LE's had "a bit of wet string".

Four things happened, we know from information about Echelon, that the IC were deploying the equipment not just at national entry/exit choke points but at other national trunk backbone points as call levels increased (and terorist tactics changed). The advent of high capacity fibre optics was a serious shakeup, trunk microwave signals were rapidly disapearing due to the lack of capacity and local back haul microwave started to take over due to the start and rapid rise of the mobile phone industry. But also fibre was going into subsea cables which did not have the big delays of geostationary satellites thus calls disappeard from them into the fibre cables. Then there was this thing called ARPANET which started to be of comercial interest, as the centrally planed services by the telcos and politicians proved a mismatch for what companies and individials wanted.

The major issue for the IC was "fibre" they could nolonger covertly "sniff the spill" from the microwave antennas, they had to get into the COs and tap directly onto fibre... People in the telco's who had the technical knowledge but not the war time mentality "saw somethin.and said something" thus the information leaked out about what the IC was upto. Then "big car syndrome" kicked in with LE, they got to know the size of hose the IC got and in comparison their tiny tiny little bits of damp string were demeaning they had serious envy issues... And it's around that time that various LE FUD started, the longest running being "going dark".

We know from simple math that although the IC can "collect it all" and can now "store it all" they still can not "process it all" even if it's all in plaintext. That is they can not drink from their fire hose sized taps. However they don't want to admit to that because it might cause the appropriations people to think money for "collect it all" is a waste and quite justifiably cut the funding. What they want is for industry to do what they can not, which is come up with cost effective ways to process the hugh volumes of data. They know as various industry watchers know that it will not be long before "big data" does deliver the level of granularity the IC want, till then the IC need both the information and thus money faucets turned "all the way up to eleven".

But the LE envey is a bitter and twisted thing, they want "Total Information", they do not care it is not yet a reality and will not provide actionable evidence they just don't want to be left out of the power game. Which is why they lie about the number of investigations that have failed due to the use of encryption.

But what realy scares the IC is the knowledge that whilst they might be able to end run around your mobile technology and connected computers, they can not end run past those points... Thus "off line" encryption either via paper and pencil or techology they can not touch will be in effect locking up the treasure they otherwise plunder.

The IC's greatest assets are "lazyness" and "complacency" in those they seek to listen to. The IC do not want those people to "wake up" because they would then take the steps required to stop the technology end runs the IC increasingly rely on. It's why the IC are getting increasingly upset about the voiced LE envey of "going dark" because it's causing the "real scary people" like politicos and their funders to wake up and consider not just "off line encryption" but also how to stop "traffic analysis" on "meta-data" which is the IC fall back position when technology end runs are not possible.

The LEs don't care about the IC concerns, they are not even concerned about solving crime, all they are interested about are "meeting targets" that politicians set, and lobying those politicians. As for meeting targets, they take the Cardinal Richelieu view on justice, which is having it "be seen to be done" rather than actually ensuring it is done. As evidenced by the "Give me six lines by the hand of the most honest man and within them I will find something with which to hang him" quote.

Put simply LE will catch the stupid and incautious, but not those who can think and deploy sensible OpSec unless thay can be infiltrated and an end run achived around the OpSec (as evidenced by mafia and other serious crime). This leaves the issue of "meeting targets", well as we have seen with the FBI creating criminals works, but currently takes a lot of resources. Getting access to everybodies meta-data is just an easy way to find potential candidates to be worked on or as they say in the UK "fitted up" in some way or another.

It is this "seen to be done" rather than "being done" that is an ages old provlem, and why we have principles like "fruit of the poisoned vine" and warrants and other judicial oversight. Trust me when I say you do not want to give LEs the ability to "end run judicial oversight" it can only end badly, and giving any access without warrant to meta-data as we now call it is giving just such an end run.

Dirk PraetMay 16, 2016 4:30 AM

@ Anon10, @ Clive, @ Nick P

If you're arguing for a warrant requirement for metadata, that's not the case nationally and certainly wasn't the "default for decades." The US Supreme Court has never ruled that metadata collection requires a warrant, and if it did so, that would be historically unprecedented.

The Second US Circuit Court of Appeals in New York last year did however rule that the NSA’s warrantless collection of phone records under PA 215 is illegal indeed. Whether or not it is constitutional depends on one's judicial analysis of Smith v. Maryland, and over which courts are currently split. But for any judge with even a minimal technical background, it is quite clear that a 1979 pen register is in no way comparable to present-day surveillance capabilities and that the Smith precedent simply no longer applies due to a completely different technological context.

The most sensational statements about Able Danger were never substantiated

Five witnesses who had worked on Able Danger and had been questioned by the DoD's Inspector General later told investigative journalists that their statements to the IG were distorted by investigators in the final IG's report, or the report omitted essential information that they had provided. It had all the trademarks of a cover-up.

However, Susan Landau doesn't want the government to have access to either metadata or content.

Which is entirely reasonable until such a time that the government has proper cause to suspect someone of wrongdoing and obtains a valid warrant to collect, store and search any data. And which is exactly what the 4th Amendment is about. Never in history has there been any (mass) surveillance system that did not end up being totally abused, and to the detriment of the people. The notion that this could never happen in the US is just completely absurd to anyone but American exceptionalists.

Anon10May 16, 2016 8:07 PM


Let's not read more into ACLU vs Clapper than is there. The Appeals Court explicitly did not rule on the constitutional question. The Court did not say that metadata requires a warrant. The court did not decide on whether Smith v Maryland was applicable. All the court ruled on was whether the program was authorized by a specific section(215) of a specific law, the Patriot Act, which is now a moot point as Congress amended the law.

Nick PMay 16, 2016 8:23 PM

@ Anon10

It's private information or property of a company that the government wants that company to turn over for investigative purposes. That defaults to use of a warrant. If it didn't, government wouldn't have asked for expanded powers post-9/11 to get that data without warrants. It's kind of self-defining by their own actions. ;)

Anon10May 16, 2016 9:57 PM

@Nick P

I suggest you review the difference between administrative subpoenas(ex. NSLs), judicial subpoenas, and warrants.

Nick PMay 16, 2016 10:30 PM

@ Anon10

I suggest you look up the ECI leaks where the companies were "SIGINT-enabling" and adding metadata collection for FISA "warrants." Then the Intercept report on FISA warrants. I mean, you're statement would've been impossible to counter without those leaks. Shows what kind of crap we're dealing with where you keep citing regular law while they're using secret interpretations of law and black programs. :)

Dirk PraetMay 17, 2016 6:02 AM

@ Anon10

Let's not read more into ACLU vs Clapper than is there.

But let's not downplay it either. However moot the final verdict was rendered by the adoption of the USA Freedom Act, it did conclude that the government for years had been illegally collecting records under a flawed interpretation of PA 215. Landing it in the same waters as the Stellar Wind program.

Judge Pauley of the US District Court for the Southern District of New York in his ruling of ACLU v. Clapper did in fact find that Smith v. Maryland controls the case. He actually quoted Smith in saying: "Telephone users... typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.”

Judge Leon of the US District Court for the District of Columbia, on the other hand, in Klayman v. Obama held that the metadata program probably constitutes an unconstitutional search and seizure. He too directly referred to Smith v. Maryland, and I quote: " “When do present-day circumstances — the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

And it does make sense that the Appeals Court never ruled on the constitutional question because that's above their paygrade. That's a SCOTUS prerogative, whereas lower courts can only opine and interpret precedents.

Bumble BeeMay 17, 2016 1:48 PM

On a more serious note regarding the "going dark" issue, some years ago (long before any of this was publicly discussed) a sergeant from the Marine Corps told me he was "afraid of the dark." Now that it's in the news, I do recall that his comment was in fact in reference to encryption and computer security.

However our enemies in cyberspace already know how to operate in almost total darkness and perfect security; they are able to enforce curfew, whereas we leave our porch lights on and our homes unsecured when we go to war in cyberspace.

Anon10May 17, 2016 11:22 PM

Some of the criticisms of Tait's proposal are almost funny: From a US viewpoint, a smartphone made by a Chinese company has its password encrypted only once relative to Chinese intelligence
Who buys a Huawei phone expecting it to be PLA/MSS proof?

JoshMay 19, 2016 8:29 PM

@ Bumble Bee, "However our enemies in cyberspace already know how to operate in almost total darkness and perfect security; they are able to enforce curfew, whereas we leave our porch lights on and our homes unsecured when we go to war in cyberspace."

Cyberspace is just random people doing random things. The war mentality should really be reserved for video games.

The going dark debate, or complaint, is rather interesting because as the internet grows there is a lot more random people doing even more random things. Back in the Usenet days, people email for a purpose, and actually write something meaningful and intelligent on discussion forums. Mostly because the Internet was a special purpose network designed for just that. Then came the AOL and spammers, etc. the Internet sees a lot more junk, and more it came, comes, and is coming.

Coyne TibbetsMay 21, 2016 2:36 AM

@ Dirk Praet - And it does make sense that the Appeals Court never ruled on the constitutional question because that's above their paygrade. That's a SCOTUS prerogative, whereas lower courts can only opine and interpret precedents.

IANAL, but that's not correct. Every court has a duty to consider the law versus the Constitution, and can rule a particular issue unconstitutional (properly: in conflict with the Constitution). Many courts are loath to do so, preferring to let an appeal deal with the issue.

But many things are first ruled unconstitutional at lower levels and, if the reasoning is persuasive, other courts may adopt the precedent--even in different jurisdictions--and SCOTUS may not hear the issue for decades, if ever.

An example is United States v Alvarez: the Ninth Circuit Court of Appeals was the original court to rule the Stolen Valor Act unconstitutional. This was affirmed by SCOTUS, which had granted cert to a government appeal of the Ninth Circuit decision. (The Tenth Circuit decided the act was constitutional between the granting of cert and the decision, but that's basically a footnote.) The point is that the original decision of unconstitutionality was made by Ninth Circuit. SCOTUS reviewed it evidently because it was doubtful, but wound up affirming, making it final in all US jurisdictions.

But note that SCOTUS could simply have denied cert and, within Ninth Circuit, the Appeals court decision would have been final: unconstitutional. That wouldn't affect Tenth Circuit jurisdiction, which is one of the problems we have with the judicial system: SCOTUS should tie-break these more often than it does. But within Ninth Circuit, the decision would be final.

Dirk PraetMay 21, 2016 1:43 PM

@ Coyne Tibbets

IANAL, but that's not correct. Every court has a duty to consider the law versus the Constitution, and can rule a particular issue unconstitutional ...

I stand corrected. Some deeper digging into the US judicial review process seems to confirm your claim. My opinion was based on an article on some law blog I read a while ago, but which I unfortunately can't find back. Either the article was just plain wrong, or I misinterpreted it. Thanks for pointing this out to me.

Anon10May 21, 2016 9:37 PM


And it does make sense that the Appeals Court never ruled on the constitutional question because that's above their paygrade. That's a SCOTUS prerogative, whereas lower courts can only opine and interpret precedents.

You're right that an Appeals Court is not allowed to rule on constitutional questions in a way that conflicts with Supreme Court precedent. That's also why the dicta in an Appeals Court opinion, never mind some district court judge rambling about issues far above his pay grade, is at best political theater.

Anon10May 21, 2016 11:19 PM

@Nick P

Then the Intercept report on FISA warrants.

When Susan Landau says she wants a warrant for access to metadata, I'm almost certain she's not referring to a FISA warrant. So she is asking for something that's never been done. FWIW, warrant doesn't actually appear in the text of the FISA statute, although it's used extensively elsewhere in the US code.

Dirk PraetMay 22, 2016 1:28 PM

@ Anon10, @ Coyne Tibbets, @ Nick P.

That's also why the dicta in an Appeals Court opinion, never mind some district court judge rambling about issues far above his pay grade, is at best political theater.

It's a bit of both. It would appear that in fact every judge and even official not only has the authority, but even the duty to take into account the constitutionality of things in every act, opinion or verdict with SCOTUS being the final judge as per Marbury v. Madison. Meaning no lower-level judge can go against a precedent set by SCOTUS indeed. These can only be trumped by an amendment to the Constitution or a new SCOTUS ruling.

In practice, however, most judges - especially in lower courts - will generally exercise restraint when touching on constitutional issues in order to avoid grandstanding. Even SCOTUS in practice will not rule on them if a case can be unequivocally decided on other arguments or unless constitutionality of a statute is the essence of the case and plaintiff can prove standing.

The problem with warantless bulk metadata collection programs remains in the interpretation of Smith v. Maryland. Whereas some parties - like the DoJ's lawyers - argue that it still applies, others see a world of difference between the data a 1979 telephone pen register revealed and those revealed by today's digital communications. And which in the eyes of the latter does in effect constitute a violation of the 4th Amendment, hence the request for a valid and publicly accountable warrant by a real judge, not an ex parte secret (bulk) order by a secretive kangaroo court.

Nick PMay 22, 2016 7:00 PM

@ Anon10

The law uses the word "orders" instead of warrants. They mean the same thing in this context. An example of "order" is here. Then, in the ECI leaks here, it refers to a secret program WHIPGENIE with court orders and FISA "warrants" for "corporations." It also is one that says FBI provides "compelled or cooperative" assistance on U.S. companies. The compelled is particularly interesting. Least shady interpretation is it's the court orders/warrants with financial threats to company and/or prison for its personnel.

Then, there's regular warrants in a court that everyone knows exist and often can challenge with some chance of winning. They can challenge evidence and collection methods, too. We wouldn't even know about the evidence or collection methods outside Snowden, though. It's all a black box that feeds to enforcement organizations with criminal immunity for abuses. Great combo.

Anon10May 24, 2016 8:15 PM

With respect to 1) 1. Watch for systems that rely on a single powerful key or a small set of them., you almost wonder if they read their own post. As I've pointed out elsewhere, the internet already relies on a small set of private keys, those of the root CAs. We crossed the red line in 1 a long, long time ago. The difference is that we rely on private companies like Verisign to keep the master key secret instead of the government. DigiNotar is a perfect example of this.

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