That stonewalling thing

There is a meme in the current crypto “debate” that makes me cringe whenever I read it: the idea of “stonewalling”. It’s come up in the Apple vs FBI case as the ForbesLA Times, Jacobin magazine and others all described Apple as “stonewalling” the FBI.

Wired’s recent Whatsapp story mentioned that “WhatsApp is, in practice, stonewalling the federal government” and while Foreign Policy magazine avoided the word, they captured the essence when they described Whatsapp as a “a service willing to adopt technological solutions to prevent compliance with many types of court orders”.

All of these articles make it sound like Apple/Whatsapp has the data, but it unwilling to give it to the government.

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Blobs of encrypted text like the one above are useless for anyone put the holder of the decryption key. Where the company holds the decryption key and refused to give it up, it seems reasonable to call that “stonewalling”.

Without the decryption key, you may be in possession of such a blob but you can’t meaningfully be described as “having” the data within it. Calls of “stonewalling” in cases like that are either grandstanding or reveal an opinion-disqualifying level of ignorance.

These accusations of stonewalling obscure what I think is the real appeal of encryption and tools such as Tor: it’s not that these technologies prevent compliance, it’s that companies can prevent the collection certain types of data in the first place.

The authors of a recent paper called “Cryptopolitik and the Darknet” did exactly that when they crawled the darknet for data:

“In order to avoid illegal material, such as media files of child pornography or publications by terrorist organisations, only textual content was harvested automatically. Any other material was either filtered out or immediately discarded.”

Nobody would think to accuse them of stonewalling or adopting “technological solutions to prevent compliance” for finding a way to do their darknet crawl without accumulating a bunch of data that is going to bring with it complicated law enforcement dealings.

When Whatapp wants to “avoid illegal material” while still remaining in the messaging business, they do it with end-to-end encryption.

 

Why end-to-end? In end-to-end encryption, the end users hold the decryption keys. Companies who decide to keep the keys themselves become a target of every spy agency on the planet and run the risk of becoming the next Gemalto.

That technologies and architectural choices exist which allow you to filter the data you are exposed to, and therefore your level of legal liability/obligation feels new. Or maybe what’s new is companies willingness to actually implement them.

No-one is interested in obstructing investigations, just managing risk and legal exposure. “If you collect it, they will come” is becoming a common phrase among programmers and security people, and for companies who don’t want to end up holding data related to a crime, painting a giant target on themselves, dedicating resources to servicing government requests, or having awkward public relations moments, end-to-end encryption starts to look like good risk management. Doubly so when you are dealing with multiple governments.

In that context, governments pushing back against end-to-end seem to indicate an existing idea that companies are somehow obligated to collect data on behalf of the government and that using encryption to limit your collection is not OK. This is visible in the issue of the government conscripting companies to do it’s work raised by the FBI’s recent use of the 1789 All-Writs Act law to try to force Apple to build software to hack it’s own phone.

With many years of enthusiastic support from companies like AT&T it’s easy to see where that idea might have come from. As the American government oscillates between attacking tech companies and asking them to do it’s job, and authoritarian governments and international customers look on, it’s not hard to see why many tech companies are far less enthusiastic about facilitating government aims. So far “stonewalling” seems to be a deliberately provocative framing for the “we’ve stopped collecting that data, leave us out of this” reality that end-to-end encryption creates.

Seeing that kind of inflammatory rhetoric from the FBI or congress is one thing, but it’s widespread use by journalists is very disconcerting.

As cries of “stonewalling” turn to accusations of tech companies thinking they are “above the law” and now draft anti-encryption legislation, it’s probably good to remember that blob of encrypted text. It’s not that these companies are getting in the way of the FBI getting data, they are trying to get themselves out of the way by removing their own access to it.

Of all people, former NSA director Michael Hayden recently observed “America is simply more secure with unbreakable end-to-end encryption”. I never thought I would be hoping more people would listen to him.

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