New Berkman Center Report Assures Us That Law Enforcement Isn't "Going Dark"

The Berklett Cybersecurity Project of the Berkman Center for Internet and Society at Harvard University has just released a new report on the so-called “going dark problem” that is fueling law enforcement demands for access to encrypted information. The report, “Don’t Panic: Making Progress on the ‘Going Dark’ Debate,” concludes that new consumer technologies will increasingly provide a wealth of data to governments about individual movements and activities. The full report is available in PDF form here.

The signatories to “Don’t Panic” comprise an all-star group of security and policy experts from civil society organizations, the U.S. intelligence community, and academia, reflecting diverse experience and viewpoints. The Berklett Cybersecurity Project seeks to “bring together people who come from very different starting points and roles, and who very rarely have a chance to speak frankly with one another,” according to Professor Jonathan Zittrain, the Berkman Center’s faculty chair and one of the report’s signatories. “We want to come away with some common insights that could help push the [‘going dark’] discussion into some new territory.”

The debate could use that push. For more than two decades, the U.S. law enforcement community has cautioned policymakers and the American public that it is in danger of “going dark” if criminals and terrorists can take advantage of strong, commercially-available encryption technologies. Those warnings have intensified since the fall of 2014, when Apple announced that it would start encrypting its popular iPhones by default. But law enforcement’s proposed solution – weaker crypto for everyone, criminal or innocent – has never really changed.

The new Berkman report questions law enforcement’s forecast that it faces an ever-decreasing availability of data needed for criminal and national security investigations. According to “Don’t Panic,” rumors of crime-fighting’s imminent death due to crypto have been greatly exaggerated. While encryption may “dim” some communications from police view, said Berkman Center fellow and report signatory Bruce Schneier, there are “other areas where communications and information are actually becoming more illuminated, opening up more vectors for surveillance.”

In particular, the report predicts that the “Internet of Things” – sensors and wireless connectivity in a range of appliances and products, “from televisions and toasters to bed sheets, light bulbs, cameras, toothbrushes, door locks, cars, watches and other wearables” – will increasingly be able to reveal otherwise private conduct to law enforcement. Indeed, Schneier has been saying for years that we live in “the golden age of surveillance.”

With numerous other tools and sources of information at its disposal, the Berkman report concludes, law enforcement has ample means of tracking suspects even as the use of encryption becomes more and more widespread. There is no need, in other words, for backdoors or crypto-"piercing" legislation. As Professor Susan Landau of Worcester Polytechnic Institute declared in an individual signatory statement appending the report: “policy facilitating the ubiquitous use of uncompromised strong encryption is in our national security interest.”

For these reasons, some groups opposing the government’s push for crypto backdoors have lauded the report, even though it’s actually quite sobering from a civil liberties perspective. The proliferation of surveillance-friendly personal data may be good news for police investigations – but it’s worrisome for personal security, privacy, freedom of expression, and consumer protection, as Schneier and Prof. Zittrain commented in guest posts on Lawfare earlier this week. The report acknowledges these tensions, calling it “vital” in light of the developing Internet of Things to “make thoughtful decisions about how pervasively open to surveillance we think our built environments should be.”

We hope that policymakers, consumers, and the companies that develop these products will heed that call. CIS congratulates our friends at Berkman on the release of this timely, balanced, and much-needed report.

Add new comment