Ex FBI General Counsel Involved in Suing Apple over Encryption Sees the Light, Reverses Stance

2 minute read
| Analysis

Jim Baker, former General Counsel for the FBI from 2012-2014, has seen the light on encryption, embracing the importance of keeping our data secure from bad actors, even though it makes law enforcement’s job harder. This is significant to me in that Mr. Baker lead the effort by the FBI under then-Director James Comey to force Apple to break the encryption that protects our devices in order to access an iPhone used by a domestic terrorist.

In a long, thoughtful, and well-reasoned piece for the Lawfare blog, Mr. Baker cited a guiding principle to, “embrace reality and deal with it.” And while he long worked to solve the “going dark” problem where criminals are able to use encryption to evade law enforcement, he said it was time to embrace the protections of encryption, and accept that it carries a price born by victims of crime and law enforcement, both. From his piece:

In the face of congressional inaction, and in light of the magnitude of the threat, it is time for governmental authorities—including law enforcement—to embrace encryption because it is one of the few mechanisms that the United States and its allies can use to more effectively protect themselves from existential cybersecurity threats, particularly from China. This is true even though encryption will impose costs on society, especially victims of other types of crime.

We could sort of distill that down to, “it turns out that Bryan Chaffin guy was right all along.”

Or, more realistically, that folks like General Michael Hayden were right all along, when he advocated essentially the same thing.

He added:

Public safety officials should continue to highlight instances where they find that encryption hinders their ability to effectively and efficiently protect society so that the public and lawmakers understand the trade-offs they are allowing. To do this, the Justice Department should, for example, file an annual public report describing, as best it can, the continuing nature and scope of the going dark problem. If necessary, it can also file a classified annual report with the appropriate congressional committees.

But, for the reasons discussed above, public safety officials should also become among the strongest supporters of widely available strong encryption.

Yes, please, more of this. But more of this isn’t what we are likely to get as current Attorney General William Barr believes in a fairy tale world where there’s a technical solution that allows law enforcement to access encrypted systems while somehow keeping the myriad of malicious actors out. the current FBI Director, Christopher Wray, has also picked up the mantle of weakening encryption. Jim Baker addressed this, and much more, in his full piece.

Speaking of which, I recommend it if you have any interest in encryption. It’s long, complex, and deep, but it’s a great read. He lays out the good and bad sides of the encryption issue in a very thorough and even-handed manner. That said, the target market for this piece is not your man-on-the-street. Lawfare is a highly respected blog in the law enforcement community, and I just hope that more people in that community pay attention to Jim Baker’s words.

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