In 1993, then-US president Bill Clinton’s administration introduced the “Clipper chip” into the US’ digital and consumer electronics. It was one of the earliest attempts to enforce a back door into digital products, and the first in what is known as the “Crypto Wars,” when the US government fought to control and regulate strong encryption.
The Clipper chip was a catastrophic failure. It was a failure that Australian Attorney General George Brandis might find instructive as he places Australia on the front line of a new crypto war.
Last weekend, Brandis sought to revive a debate that has continued for several years about granting governments greater access to encrypted messaging communication to aid criminal investigations.
In an interview with Sky News, Brandis said he would approach the Five Eyes intelligence network — made up of the US, Britain, Canada, New Zealand and Australia — to ask them to consider imposing greater legal obligations on device makers and social media companies “to cooperate with authorities in decrypting communications.”
He looked favorably at laws passed in Britain that require device makers and messaging providers to provide greater assistance to authorities in decrypting messages.
Brandis has stressed this is not about creating a “back door,” but it is hard to see how what he is proposing could be possibly be achieved without this.
What he appears to be suggesting is creating a cross-jurisdictional system that would compel different providers and services to provide law enforcement agencies with greater access to communications.
This would only be possible with a vast data retention regime scheme imposed on devices and messaging services, and a system by which the app companies and providers have access to the keys that encrypted communications.
That is not just a back door — that is more like a giant sinkhole that your back door fell into. It is a gaping, cavernous hole in the architecture of the Internet, and that is a big problem for a number of reasons.
To start with, strong encryption is vital to national security. If you “impose an obligation” on a company to make sure they can give access to it, you risk making those tools less secure.
Undermining these protections would undermine all kinds of important cryptography.
Apps including Signal and WhatsApp, which uses Signal’s protocols, are designed so providers cannot decrypt messages, because they know that if they could, they would be far more vulnerable to attacks and exploitation.
Australian Prime Minister Malcolm Turnbull, a more tech savvy leader than most, uses Signal and Wickr because they are designed to be more secure.
There is precedent for this.
Phil Zimmerman, founder of encryption program Pretty Good Privacy, has outlined that the Crypto Wars of the 1990s actually weakened US cyberdefenses.
“You don’t have to distrust the government to want to use cryptography,” he wrote in a 1999 essay. “Your business can be wiretapped by business rivals, organized crime, or foreign governments. Several foreign governments, for example, admit to using their signals intelligence against companies from other countries to give their own corporations a competitive edge.”
Brandis’ proposal envisages a vast regime of surveillance that hugely increases the risk of government and non-governmental intrusions into privacy in order to combat a very specific threat.
UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression David Kaye has written extensively about the value of encryption for safeguarding basic human rights.
In a paper that considered the value of encryption, he wrote that “encryption and anonymity provide individuals and groups with a zone of privacy online to hold opinions and exercise freedom of expression without arbitrary and unlawful interference or attacks.”
Brandis’ scheme could only succeed if the US came on board, where most of the well-known messaging services are based.
However, it would be fruitless, because companies would simply move offshore to evade the onerous new obligations on them. Organized criminals and those committed to acts of violence who use these apps would be likely go with them, but so would the millions of users who want to ensure their data is secure.
In a small number of criminal cases there are clearly difficulties in gaining access to encrypted communications. However, there are already vast powers available to law enforcement and security services.
Australian federal police and state and territory police agencies can use what is known as a 3LA warrant. This is often issued in computer crime cases to force a person to decrypt their smartphone and computer. It can only be used against individuals, and not telecommunications companies.
As terrorism investigations are usually tightly focused, Australia’s security services are also increasingly targeting devices themselves.
Much of the current debate is focused on the use of a small number of apps, such as WhatsApp, Signal and Telegram.
WikiLeaks spokesman Julian Assange has warned against the “app cult” that has developed in the past few years, since smartphone-based encryption apps became popular. Assange has said that these apps are only as safe as the devices you use with them.
As the CIA Vault 7 leak has shown, law enforcement agencies can penetrate many devices without needing to target apps. Australian law enforcement agencies have been making use of these tools for many years.
The Clipper chip failed because it made users less secure, not more, and the US government underestimated opposition to it.
Brandis might find this instructive if he is considering embarking on a new crypto war.
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