Attorney General Jeff sessions gave a speech on Monday to the Association of State Criminal Investigative Agencies, in which he outlined how the Department of Justice was going to be helping them out. As you’d expect, it was the usual law-and-order-rah-rah stuff, and there was plenty to argue with. I’d like to focus on this bit:
It is also critical that we deal with the growing encryption or the “going dark” problem.
And the stakes are high. Last year the FBI was unable to access investigation-related content on more than 7,700 devices—even though they had the legal authority to do so. Each of those devices was tied to a threat to the American people.
This is a large number, but it is small compared to the number that your agencies are unable to access because of encryption.
Many years ago, some conservative pundit (it might have been William F. Buckley, I can’t find the quote) grew tired of liberal complaints that that millions of poor Americans were “starving,” and he responded with a blunt question: If poor Americans are starving, he asked, then why aren’t they dying? That sounds cold-hearted, but I think it’s a fair point about the rhetoric of poverty: If nobody is dying from lack of nutrition, then “starving” is a gross exaggeration. Or less politely, it’s a lie.
Which brings me to Sessions’ assertion that each of the 7700 inaccessible devices was tied to a threat to the American people: If encryption prevented the FBI from investigating 7700 threats to the Amrican people, where are all the dead Americans?
When people talk about taking away some government investigative power — FISA warrants, say — folks like Sessions are always quick to claim that they need that power to protect America, and if we only knew of the terrible threats they confront to protect America, we would agree with them. This is a hard argument to counter, because without seeing their evidence — which must of course remain secret for national security reasons — the only way to find out if they really need the power is to take it away and see if something bad happens. Needless to say, there is some reluctance to conduct such an experiment, so we end up taking their word for it.
But the situation with encryption is the opposite case: Sessions wants the DOJ to have a power it doesn’t currently have. So if he’s right about the consequences of not having that power, then our country should now be littered with the bodies of people who could have been saved, but for the DOJ’s inability to break into those phones. You’d think he could easily offer a few hundred examples.
Unless of course strong encryption in the hands of Americans isn’t the problem he’s trying to convince us it is.