EFF in the News
So, after two scuttled courtroom conflicts, will the government shift to a different strategy?
With the broader encryption fight unresolved, the Justice Department remains eager for a solution to what it perceives as the crisis posed by secure communications.
“You can’t be certain, but I would guess they will reconsider,” Andrew Crocker, a staff attorney with the Electronic Frontier Foundation, told BuzzFeed News. “They might very well use what happened in these cases to say to Congress: ‘We need a legislative solution.’”
The plenary session expanded on some of the themes EFF executive director Cindy Cohn talked about during her keynote address. Cohn has been involved in numerous high-profile court cases against the National Security Agency over its mass surveillance data-collection programs.
A capacity crowd gave Cohn a rousing reception and a standing ovation during her address. “The government’s ongoing quest to make sure no one can have a private conversation online has been going on for 20 years now,” said Cohn. “Liberty depends on people having a zone of privacy whether they’re online or offline.”
Cohn wrapped up her speech with a call to action, encouraging the lawyers in attendance to get involved in the fight. She also urged them to stay vigilant and not to forget about governmental surveillance once Snowden, Apple’s privacy issue and everything involved disappeared from the headlines.
Mark Jaycox, civil liberties legislative lead at the Electronic Frontier Foundation, said in an email, "We think it should move forward."
"For many, if not most, Americans, our computers, phones, and other electronic devices contain a catalogue of information as diverse as the thoughts in our mind. These devices, and the information they contain, define our 'familial, political, professional, religious, and sexual associations," staff attorney Kit Walsh of the Electronic Frontier Foundation wrote in an amicus brief, quoting a ruling by Justice Sonia Sotomayor.
Electronic Frontier Foundation technologist Jeremy Gillula advises against creating a simple code for sending important numbers, such as changing all 1s to 2s. “If you’re using a simple cipher, you might as well call up the recipient and tell them [the number] over the phone,” he says.
Some email networks are encrypted within their own systems. If you know that your recipient is using Gmail, and you’re using Gmail, the content of the messages will be protected from snooping while being sent, Gillula says. “It can thwart a passive eavesdropper, but you’re still susceptible to active attacks.”
“I think the All Writs Act litigation is most likely over,” says Electronic Frontier Foundation staff attorney Nate Cardozo. “Nothing’s saying they can’t try it again, but they’ve been burned twice.”
Instead, Cardozo and other civil liberties advocates think the fight will shift to Congress, where the government can argue that it needs a new law to govern encryption since the old laws aren’t proving effective.
When Senators Richard Burr and Dianne Feinstein introduced their anti-encryption legislation two weeks ago, their efforts were panned by technologists as “flawed and dangerous,” “ludicrous” and “technically illiterate.” The bill, titled the Compliance with Court Orders Act of 2016, is not expected to receive widespread support among lawmakers. However, Cardozo says that the demands of the bill — which would require companies to decrypt “unintelligible” data by making it “intelligible” — are merely a point from which the government can negotiate.
“This is just the opening bid,” Cardozo says of the bill. Any successful encryption legislation is likely to scale back the drastic measures proposed in the Burr-Feinstein bill, while still providing some support for the Justice Department’s interests.
"My best guess is that after yet another eleventh-hour reversal, DOJ won't bring another of these All Writs Act cases," says Andrew Crocker, an attorney with the Electronic Frontier Foundation. "Instead, I think we should expect to see even stronger efforts to pass some sort of anti-security bill in Congress—the sort of government access mandate we've seen in the Burr-Feinstein proposal."
The legality issue Airbnb raises could trip up the proposed amendments. The Communications Decency Act shields online intermediaries from liability for content generated by users of their services. That federal law aims to prevent service providers from being compelled “to actively monitor and police their users,” said Corynne McSherry, legal director of the Electronic Frontier Foundation. “That would create a chilling atmosphere for online commerce and speech.”
“The FBI could have handled this investigation in a different way, but they failed to,” Electronic Frontier Foundation staff attorney Mark Rumold told TechCrunch. The EFF has argued in another Playpen-related case that the NIT warrant was unconstitutional. “They just cast their net as wide as they could, and now they’re having to fight tooth and nail to bring these prosecutions. If they had done it in a way that was targeted in the first place, they wouldn’t have this problem,” he added.
Although this ruling is likely the end of the case against Levin, other defendants linked to Playpen are standing trial across the country. Judges in those cases are not bound to follow Young’s ruling, and those cases may still proceed. The Justice Department may also continue to bring charges against other suspected Playpen users — but Rumold says that’s not a good idea.
“At this point, there were so many problems with the way the FBI conducted this investigation that DOJ should just stop bringing these cases,” Rumold said.
“I think that it is a small percentage, but it's also very difficult to measure because frequently there is no place to report it to, and people have different ideas about what qualifies as harassment,” Eva Galperin, global policy analyst at the Electronic Frontier Foundation, told Motherboard in a phone call. “We can't really know.”