Obama Hints at Renewed Pressure on Encryption, Clinton Waves Off First Amendment

President Obama and Hillary Clinton made statements on Sunday indicating that the post-San Bernardino focus on rooting out radicalized individuals is going to lead to heightened pressure on social media sites and tech companies that provide unbreakable end-to-end encryption.

In his Oval Office speech on Sunday night about the fight against ISIS, President Obama devoted one line in his speech to the topic. “I will urge high-tech and law enforcement leaders to make it harder for terrorists to use technology to escape from justice,” he said.

Meanwhile, Clinton, the Democratic presidential frontrunner, gave a talk at the Brookings Institution where she urged tech companies to deny ISIS “online space,” and waved away concerns about First Amendment issues.

“And this is complicated. You’re going to hear all of the usual complaints, you know, freedom of speech, et cetera. But if we truly are in a war against terrorism and we are truly looking for ways to shut off their funding, shut off the flow of foreign fighters, then we’ve got to shut off their means of communicating. It’s more complicated with some of what they do on encrypted apps, and I’m well aware of that, and that requires even more thinking about how to do it.”

A “senior administration official” told Reuters that the White House intends to talk to tech companies in the coming days about developing a “clearer understanding of when we believe social media is being used actively and operationally to promote terrorism.” Major social media sites are alreadydeeply engaged in combating online propaganda and recruitment by Islamic militants.

But Obama’s comments were also clearly related to end-to-end encryption, a once rare but now increasingly common method that assures people that anyone intercepting their communications will simply see a series of seemingly random characters. (Significantly, even the best encryption does not preclude law enforcement or other actors from accessing those communications by hacking a target’s devices, something that is particularly easy for organizations like the FBI or NSA.)

In his comments, Obama was echoing statements by FBI Director James Comey, who is the administration’s chief advocate for finding a way to give law enforcement some sort of special doorway into encrypted communications that does not unduly jeopardize the security of those communications.

The tech industry, however, along with other experts and privacy researchers, have been adamant that no such way exists. Any “backdoor” for law enforcement use could inevitably be abused by bad actors as well, they say.

A Washington Post article in September reported that Obama had decided not to push for legislation that would require an encryption backdoor. But the article also quoted an email from the intelligence community’s top lawyer, Robert S. Litt, in which he told colleagues that congressional support for anti-encryption legislation “could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

Clinton, meanwhile, said that “what we see right now I think is just the beginning of directed attacks and self-radicalization that leads to attacks like what we think happened in San Bernardino. And we’re going to have to ask our technology companies … to help us on this.”

The “threat from radical jihadism has metastasized and become more complex and challenging,” she said. “It’s the nexus of terrorism and technology, and we have a lot of work to do to end it.”

The San Bernardino shootings are also being cited by some Republicans, including presidential candidate Sen. Marco Rubio, as a reason to reinstate the warrantless bulk collection of domestic telephone data — the one program that was shut down by Congress after NSA whistleblower Edward Snowden revealed a massive, secret surveillance dragnet.

An Associated Press story on Saturday added fuel to the fire when it claimed that as a result of the shutdown, the government could no longer access historical call records by the San Bernardino couple. But as Emptywheel blogger Marcy Wheeler amply explained, the FBI has plenty of other ways of getting the information.

Several analyses of Obama’s comments present themselves:

1. He, like Comey, actually believes there is a “magic pony” solution to the encryption dilemma that the brightest technological minds in the world have simply failed to come up with yet.
2. He, like Comey, is simply ramping up the pressure on tech companies in an attempt to slow down the spread of end-to-end encryption, thereby extending what has been a “Golden Age” of surveillance.
3. It was just a line in a speech.

After I tweeted Obama’s comments on Sunday night, Zack Whittaker, who writes about cybersecurity and privacy for ZDNet, declared the start of a new crypto war. (Crypto War I, in the 1990s, was resolved when the government realized there really wasn’t anything it could do to stop the spread of encryption in the long run.)