In a wide-ranging and rare conversation at the IAPP Global Privacy Summit, FBI General Counsel Jim Baker discussed his role within the agency and provided an update to the current state of the highly publicized smartphone-encryption debate.
“I’m worried about saying it in this room, but I do consider myself to be a privacy lawyer,” Baker said. With 27 privacy officers embedded within the FBI, Baker said it’s not about balancing privacy and national security. “We have to do both and reconcile them.”
He noted the difficult skills that are needed by privacy officers, including the need to be smart about technology, familiar with privacy law, and able to adapt to a rapidly changing environment. “Privacy lawyers need to think around the corner. They’re a real cutting-edge part of our practice,” he said.
Baker also highlighted the importance of trust, something privacy officers in private-sector organizations hold dearly. Since the Snowden disclosures nearly three years ago, the U.S. government has been dealing with a trust issue, not only in the U.S. among civil society, but around the world, particularly in Europe. The issue was further hurt by the massive hacks of the Office of Personnel Management. And, for the FBI, the trust issue is front-and-center with its well-known, public court battle with Apple.
“We have worked hard to address that,” he said. “I recognize that we cannot be successful without trust and confidence of the American people.”
The crux of the FBI’s battle with Apple revolves around what it calls the “going dark” problem – a concept that Baker tried to explain to attendees Tuesday. Taking a broad view of American society, Baker said the U.S. must figure out a way to protect its economy while also protecting its citizens. To help do its part over the years, the FBI has relied on electronic surveillance to uncover the planning of criminal and terrorist activity.
“That said, the tool we’ve relied on is becoming less and less effective today with respect to content because of encryption,” he said. “As it’s spread throughout the world, as it’s become easier to use, and become the default, more people will use it.”
Baker explained, “With terrorism, we have a zero failure rate.” But Baker also noted that U.S. citizens, through Congress, have the ability to change what tools the FBI can use in its investigations. “The way things are going, you will have a world full of encryption. What are you going to do about it?” he asked the crowd, adding, “It’s your responsibility.”
Baker’s conversation comes the same day that WhatsApp announced it now offers end-to-end encryption for it users – who number around one billion. Baker said that development “poses a significant problem for us.”
Baker also answered questions on the Justice Department’s use of the All Writs Act – the statute from 1789 that it used in attempting to compel Apple to help it unlock the iPhone used by one of the San Bernardino shooters. “We don’t tell companies to do anything,” he said. “We go to a federal court to obtain an order under an act of Congress that determines what we can do."
He discussed the FBI’s motivation in pursuing its case in San Bernardino – a phone some have argued likely did not contain actionable evidence since it was a work phone. “The San Bernardino case,” he said, “was driven by our sense of obligation to do a professional and thorough investigation.” Baker added. “Our desire to see what was on the phone was part of a larger investigation, and we’re still working on that.”
Baker also hinted that it had looked to other agencies – notably the NSA – for help unlocking the phone prior to going to court. “When we went to court, we did not have a solution – the government did not have a solution to unlocking the phone.”
Notably, Baker said that FBI has yet to share with Apple how it unlocked the phone and said the agency was “discussing a range of issues for sharing the solution.”
“We love encryption,” Baker told the audience. “I’ve been a victim of privacy crimes several times, including at the OPM. I wish that data had been encrypted.”
Of course, such sentiment prompted questions about the FBI’s attempt to weaken encryption and the broader effect that would have on phone security, including for government employees. Security researcher Ashkan Soltani asked why the FBI isn’t asking Congress for more resources and technological expertise within the agency, instead of its current path that could weaken encryption en masse.
“That is a reasonable approach,” Baker said. “I don’t know if it’s the right one, but if Congress decides they’ll give us more money, we would do it. Keep in mind,” he added, “all those tools have costs associated with them, too, that are labor intensive and require well-trained staff. Plus, there would be a significant lag period” between gaining such resources and being able to protect national security, regardless of encrypted technologies.
When asked if he thought there really could be a solution to the “going dark” issue, Baker was candid. “It is certainly possible there isn’t a solution, and we’ll have to deal with encryption.” That would leave the issue to U.S. citizens. “There might not be solutions, but there are choices. We work for you. And we’re just trying to have you make an informed decision.”
Top image: James Baker and Michael Sussman, taken by Jedidiah Bracy
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