Data Shows Little Evidence for FBI's Concerns About Criminals 'Going Dark'

The numbers don’t back up the FBI’s claims that encryption is getting in the way of fighting crime.

|
Jul 1 2015, 4:58pm

In the last few months, several government officials, led by the FBI's Director James Comey, have been complaining that the rise of encryption technologies would lead to a "very dark place" where cops and feds can't fight and stop criminals.

But new numbers released by the US government seem to contradict this doomsday scenario.

In 2014, encryption thwarted four wiretaps out of 3,554, according to an annual report published on Wednesday by the US agency that oversees federal courts.

The report reveals that state law enforcement agencies encountered encryption in 22 wiretaps last year. Out of those, cops were foiled on only two occasions. As for the feds, they encountered encryption in just three wiretaps, and could not decipher the intercepted communications in two of them.

"This is on a downward trend, not upward."

"They're blowing it out of proportion," Hanni Fahkoury, an attorney at the digital rights group Electronic Frontier Foundation (EFF), told Motherboard. "[Encryption] was only a problem in five cases of the more than 3,500 wiretaps they had up. Second, the presence of encryption was down by almost 50 percent from the previous year.

"So this is on a downward trend, not upward," he wrote in an email.

In fact, cops found less encryption last year than in the year prior. In 2013, state authorities encountered encryption in 41 cases, versus 22 in 2014. At the federal level, there were three cases of encryption in 2014, against none in 2013. (The report also refers to five federal wiretaps conducted in "previous years" but only reported in 2014. Of those, the feds were able to crack the communications in four of the five.)

The FBI did not respond to Motherboard's request for comment.

Yet, other experts warn that the Wiretap Report is only a small window into the world of government surveillance.

First of all, the FBI has been railing against encryption not just when it's used for communications, but especially when it's used to safeguard data on the phone or computer. The whole recent debate was spurred by Apple's announcement that it wouldn't be able to unlock phones for the police anymore, and that new iPhones would be encrypted by default. Wiretaps aren't used to get that kind of data, but cover mostly communications.

Moreover, the FBI has said in the past that it doesn't apply for wiretaps when it know it can't intercept the targeted communications, according to Albert Gidari, a lawyer at Perkins Coie who has worked with technology firms on surveillance matters, and Jonathan Mayer, a computer scientist and lawyer at Stanford University.

"The report is suggestive, but hardly conclusive," Mayer told Motherboard. "Much more telling, in my view, is that law enforcement and intelligence officials remain unable to provide episodes where encryption frustrated an investigation."

So far, the FBI has yet to put forth a valid example where encryption really thwarted an investigation. In fact, some of the examples cited by Comey have been debunked in media reports.

For now, at least when it comes to wiretapping, the FBI's isn't really going dark.

"This crypto debate continues to be a red herring because we really are uninformed about the facts that the FBI contends supports their position," Gidari said.

The Wiretap Report contains other interesting information that shed a light on government surveillance practices. Out of the more than 3,554 wiretaps authorized by judges, the vast majority of them (3,409 or 89 percent) were for drug related offenses. Homicide, in turn, was the reason behind only 4 percent of the the wiretaps. And virtually all of them (96%) were for "portable devices," such as cellphones.

Even if the Wiretap Report is just small a peek behind the scenes of government surveillance, it shows that for now, at least when it comes to wiretapping, the FBI's isn't really going dark.