Comey Can't Say How Often Encryption Thwarts Investigations, But Probably A Lot

from the never-let-facts-get-in-the-way-of-the-rhetoric dept

FBI Director James Comey believes encryption is perhaps the biggest threat to public safety yet. So big, in fact, that he can only engage in hyperbole about it. There's been very little done to quantify the problem, even by the agency that seems to fear it most.

In 2015, Comey told senators that a "vast majority" of devices seized by US law enforcement "may no longer be accessible" due to encryption. Comey has a very strange definition of "vast majority," as Marcy Wheeler points out.

In a speech at the end of August, Jim Comey claimed that the FBI had been unable to open 650 of the 5,000 devices it got in its forensics centers. "We believe in the FBI that we need a conversation. If at the end of the day the American people say, “You know what, we’re okay with that portion of the room being dark. We’re okay with”—to use one example—“the FBI, in the first 10 months of this year, getting 5,000 devices from state and local law enforcement and asked for assistance in opening them, and in 650 of those devices being unable to open those devices.” That’s criminals not caught, that’s evidence not found, that’s sentences that are far, far shorter for pedophiles and others because judges can’t see the true scope of their activity." That left the impression that encryption thwarted the FBI in 13% of all cases.

But it's not even 13%. Comey has given the impression that the agency has hard numbers on encryption, but there's still nothing to work with. The 13% percent presented by Comey includes all inaccessible phones -- a number that includes physically-damaged phones and phones where data had been deleted.

So the "problem" is far less of a problem than has been presented. While it's true that the number of encrypted devices encountered will rise with the continued implementation of encryption-by-default, the "darkness" predicted by Comey and others (like Manhattan DA Cy Vance) is still nothing more than a rhetorical tactic.

But nothing's going to move ahead legislatively if the FBI can't demonstrate necessity. And 13% isn't going to cut it, even if that number is inflated. James Comey is basically acting as an anti-encryption lobbyist, as Wheeler points out:

So unless the FBI, after I asked in early September, went back and recalculated their quarterly numbers (I’ve got a question in to clarify this point), then the FBI is presenting a false claim about encryption.

This is what's being used willingly by Senators Burr, Feinstein, and others to push anti-encryption legislation forward: overstated fears and massaged numbers. Comey wants the private sector to "nerd harder" and bend math to his will, ignoring the realities and repercussions of doing so. This fits in perfectly with his nonscientific approach to curbing or ending encryption: unverifiable claims backed by fuzzy numbers and a continued unwillingness to address the situation as it is, rather than what he portrays it to be.

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Filed Under: encryption, fbi, going dark, james comey, law enforcement, privacy