The FBI’s Problem Isn’t “Going Dark.” Its Problem is Going Slowly

Publication Type: 
Other Writing
Publication Date: 
July 16, 2015

It should be clear to even casual observers today that the “golden age of surveillance” thesis is fundamentally correct. We live in a time when far more data and surveillance opportunities are available to law enforcement and intelligence agencies than ever before. Even the National Security Agency has conceded the point. This fact colors opposition to the FBI’s requests for exceptional access to encrypted data and communications. Many opponents of recent proposals believe the FBI doesn’t really have a problem. Its capabilities are already “exceptional” historically speaking because of the amount of data we all generate about ourselves.

If this is true, what explains the FBI’s rhetoric about “going dark”? Explanations have fallen into two categories: 1) hyperbole, and 2) loss aversion — the idea that the FBI feels the pain of an immediate loss of access more acutely than it feels the benefits of a longer term expansion of its surveillance capabilities. While both of those explanations have some truth, neither sufficiently explains the Bureau’s claim that it is “going dark.”

It’s instead worth considering a few reasons why the FBI might be encountering a gap in its surveillance capabilities during the golden age of surveillance. 

First, a recent loss of access to user data and communications to encryption is not necessarily a return to an earlier surveillance status quo, as some would suggest.

The data available for collection by law enforcement authorities (LEAs) has expanded steadily over the last decade. One might therefore think that the growing use of encryption means LEAs are losing what they have only recently gained. iPhones are a good example; we now store masses of data about ourselves on these devices that weren’t available to the FBI as recently as 2007, when they were first introduced. In cases like this, new technology has an additive quality; it presents additional surveillance opportunities not available previously. And for these cases, a loss of access might in fact represent a return to an earlier status quo.

This argument doesn’t always hold up, however, because surveillance targets’ communications methods have not remained static. Law enforcement and the intelligence community have moved to take advantage of the golden age of surveillance at a time when their targets have also taken advantage of the benefits of modern technologies to self-organize, communicate, and plan their activities.

To use a simple example, imagine that a terrorist group is using text messages to plan their attacks and that those texts generate huge amounts of data for the FBI. Before they began using text messages, that group planned its attacks over voice calls that could be tapped by the FBI. In this case, the collection of huge numbers of text messages doesn’t represent an expansion of surveillance. Rather, it is the same surveillance facilitated by very different technology. Now, imagine that the group begins to use an end-to-end encrypted messaging service to plan its attacks. In that case, the FBI will experience a net loss of capabilities compared to when it could tap voice calls, rather than a return to an earlier status quo.

Read the full post at Just Security