As if they weren’t Machiavellian enough, spy agencies are evidently waiting for the next terrorist attack to change public opinion on the need for encryption backdoors, reports The Washington Post.
The intelligence community’s top lawyer, Robert S. Litt, lamented in a leaked email that “the legislative environment is very hostile today … [but] it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.” According to the Post, Litt suggested there may be value in “keeping our options open for such a situation.”
A second senior intelligence official added: “People are still not persuaded this is a problem. People think we have not made the case. We do not have the perfect example where you have the dead child or a terrorist act to point to, and that’s what people seem to claim you have to have.”
The intelligence community has been frustrated by resistance to its attempts to weaken encryption through legislation. Congress does not have any legislation on deck that would require companies to hack their own customers if the government can produce a warrant. A “dead child” would undoubtedly help their cause with the public. But their “we need a terrorist attack to prove that people should be worried about terrorist attacks” theory is troubling, to put it mildly.
The leaked email obtained by the Post is another disturbing glimpse into the mindset of intelligence officials. The pursuit of spying capabilities is given paramount importance, despite their widely acknowledged ineffectiveness in fighting terrorism and the damage they do to the security of the internet.
I recently argued the U.S. government’s hunger for information could remain largely unrestrained by traditional constitutional protections due to ongoing information warfare with authoritarian states. While he may not have discussed the merits of warrants, Litt made it known internally that he views domestic spying as a competition the U.S. has with foreign adversaries: “Does anyone seriously believe that if the U.S. says we won’t seek access, the Chinese and Russians will say, ‘OK, you are right. We’ll give up?’ I don’t think so,” he snorted in the leaked email.
The tendency of public officials to exploit tragedy for political gain is of course not new. It is particularly troubling when it is utilized purely for the expansion of power by the security apparatus and echoes the period after the September 11 terrorist attacks when the security establishment had the USA PATRIOT Act ready to roll out, stocked full of new powers that had been cut from Clinton’s 1996 counter-terrorism legislation to make it acceptable to Congress.
The leak underscores the problems associated with secret laws, secret courts, secret spying programs and the failure of the democratic process to secure privacy rights. The competitive nature of domestic spying programs could compel states to further erode privacy rights within their own borders in the pursuit of “national security.” What sort of security that leaves us with remains to be seen.
[Published at C4SS Sep. 18, 2015]