Private companies are making public policy, with no societal agreement on what powers governments should and should not have to address cybercrime.
A few of us have been having a rather public discussion about who should be policing the Internet and how. This began with someone saying that he had a good conversation with a mature law enforcement official who was not himself troubled by data encryption in the context of Child Sexual Abuse Material (CSAM) on the Internet.
I have no doubt about the professionalism of the officer or his colleagues. It is dogma in our community that child online protection is a crutch upon which policy makers and senior members of the law enforcement agencies rest, and we certainly have seen grandstanding by those who say, “protect the children”. But that doesn’t mean there isn’t a problem.
Perhaps in that same time frame you may have seen this report by Michael Keller and Gabriel Dance in the New York Times. That would be 45 million images, 12 million reports of which were at the time passing through FB messenger. Those were the numbers in 2019, and they were exploding then. In some cases these images were hiding in plain sight. Is 45 million a large number? Who gets to say?
Law enforcement will use the tools they have.
We have also seen people object to June’s massive sting operation that led to the bust of hundreds of people, disrupting a drug gang network. At the same time, leading legal scholars have highlighted that the sixth amendment of the US Constitution (amongst others) has been gutted with regard to electronic evidence, because the courts in America have said that private entities cannot be compelled to produce their source or methods, even when those entities are used by law enforcement. In one case, a conviction stood, even though the police contracted the software and then couldn’t produce it.
By my score, then, many don’t like the tools law enforcement doesn’t have, and many don’t like the tools law enforcement does have. Seems like the basis for a healthy dialog.
Friend and colleague John Levine pointed out that people aren’t having dialog but are talking past each other, and concluding the other side is being unreasonable because of “some fundamental incompatible assumptions”. You can read his entire commentary here.
I agree, and it may well be due to some fundamental incompatible assumptions, as John described. I have said in the past that engineers make lousy politicians and politicians make lousy engineers. Put in a less pejorative form, the generalization of that statement is that people are expert in their own disciplines, and inexpert elsewhere. We have seen politicians playing the role of doctors too, and they don’t do a good job there either; but the US is in a mess because most doctors aren’t political animals. And don’t get me started on engineers, given the recent string of legislation around encryption in places like Australia and the UK.
It’s not like we haven’t tried to explain this, but the people who believe in the wiretap model believe in it very strongly, leading them to tell us to nerd harder until we make it work their way, which of course we cannot.
This relates to a concern that I have heard, that some politicians want the issue and not the solution. That may well be true. But in the meantime, FaceBook and Google have indeed found ways to reduce CSAM on their platforms; and it seems to me that Apple has come up with an innovative approach to do the same, while still encrypting communications and data at rest. They have all “nerded harder”, trying to strike a balance between the individual’s privacy and other hazards such as CSAM (amongst other problems). Good for them!
Is there a risk with the Apple approach? Potentially, but it is not as John described, that we are one disaffected clerk away from catastrophe. What I think we heard from at least some corners wasn’t that, but rather a slippery slope argument in which Apple’s willingness to prevent CSAM might be exploited to limit political speech; and (2) that the approach will be gotten around through double encryption.
I have some sympathy for both arguments, but even if we add the catastrophe theory back into the mix, the fundamental question I asked some time ago remains: who gets to judge all of these risks and decide? The tech companies? A government? Multiple governments? Citizens? Consumers?
The other question is whether some standard (a’la the 6th Amendment) should be in play prior to anyone giving up any information. To that I would only say that government exists as a compact, and that foundational documents such as the Constitution must serve the practical needs of society, and that includes both law enforcement and preventing governmental abuse. If the compact of the 18th century can’t be held, what does a compact of the 21st century look like?
Yet more research and yet more dialogue is required.
Encryption makes the Internet possible, but there are some controversial and other downright stupid uses for which we all pay.
Imagine someone creating or supporting a technology that consumes vast amounts of energy only to produce nothing of intrinsic value and being proud of that of that fact. Such is the mentality of Bitcoin supporters. As the Financial Times reported several days ago, Bitcoin mining, the process by which this electronic fools’ gold is “discovered”, takes up as much power as a small country. And for what?
The euro, yen, and dollar are all tied to the fortunes and monetary policies of societies as represented by various governments. Those currencies are all governed by rules of their societies. Bitcoin is an attempt to strip away those controls. Some simply see cryptocurrencies as a means to disrupt the existing banking system, in order to nab a bit of the financial sector’s revenue. If so, right now they’re not succeeding.
In fact nothing about cryptocurrency is succeeding, while people waste a tremendous amount of resources. Bitcoin has been an empty speculative commodity and a vehicle for criminals to receive ransoms and other fees, as happened recently when the Colonial Pipeline paid a massive $4.4 million to DarkSide, a gang of cyber criminals.
What makes this currency attractive to hackers is that otherwise intelligent people purchase and promote the pseudo-currency. Elon Musk’s abrupt entrance and exit (that some might call Pump and Dump), demonstrates how fleeting that value may be.
Bitcoin is nothing more than an expression of what some would call crypto-governance, a belief that somehow technology is above it all and somehow is its own intrinsic benefit to some vague society. I call it cryptophilia: an unnatural and irrational love of all things cryptography, in an attempt to defend against some government, somewhere.
Cryptography As a Societal Benefit
Let’s be clear: Without encryption there could be no Internet. That’s because it would simply be too easy for criminals to steal information. And as is discussed below, we have no shortage of criminals. Today, thanks to efforts by people like letencrypt.org, the majority of traffic on the Internet is encrypted, and by and large this is a good thing.
This journey took decades, and it is by no means complete.
Some see encryption as a means by those in societies who lack basic freedoms as a means to express themselves. The argument goes that in free societies, governments are not meant to police our speech or our associations, and so they should have no problem with the fact that we choose to do so out of their ear shot, the implication being that governments themselves are the greatest threat to people.
Distilling Harm and Benefit
Bitcoin is an egregious example of how this can go very wrong. A more complicated case to study is the Tor network, which obscures endpoints through a mechanism known as onion routing. The proponents of Tor claim that it protects privacy and enables human rights. Critics find that Tor is used for illicit activity. Both may be right.
Back in 2016, Matthew Prince, the CEO of Cloudflare reported that, “Based on data across the CloudFlare network, 94% of requests that we see across the Tor network are per se malicious.” He went on to highly that a large portion of spam originated in some way from the Tor network.
One recent study by Eric Jardine and colleagues has shown that some 6.7% of all ToR requests are likely malicious activity. The study also asserts that so-called “free” countries are bearing the brunt of the cost of Tor, both in terms of infrastructure and crime. The Center for Strategic Studies quantifies the cost at $945 billion, annually, with the losses having accelerated by 50% over two years. The Tor network is key enabling technology for the criminals who are driving those costs, as the Colonial Pipeline attack so dramatically demonstrated.
Each dot on the diagram above demonstrates a waste of resources, as packets make traversals to mask their source. Each packet may be routed and rerouted numerous times. What’s interesting to note is how dark Asia, Africa, and South America were.
While things have improved somewhat since 2016, bandwidth in many of these regions still comes at a premium. This is consistent with Jardine’s study. Miscreants such as DarkSide are in those dots, but so too are those who are seeking anonymity for what you might think are legitimate reasons.
One might think that individuals have not been prosecuted for using encrypted technologies, but governments have been successful in infiltrating some parts of the so-called dark web. A recent takedown of a child porn ring followed a large drug bust last year by breaking into Tor network sites is enlightening. First, one wonders how many other criminal enterprises haven’t been discovered. As important, if governments we like can do this, so can others. The European Commission recently funded several rounds of research into distributed trust models. Governance was barely a topic.
Other Forms of Cryptophilia: Oblivious HTTP
A new proposal known as Oblivious HTTP has appeared at the IETF that would have proxies forward encrypted requests to web servers, with the idea of obscuring traceable information about the requestor.
This will work with simple requests a’la DNS over HTTP, but as the authors note, there are several challenges. The first is that HTTP header information, which would be lost as part of this transaction, actually facilitates the smooth use o the web. This is particularly true with those evil cookies about which we hear so much. Thus any sort of session information would have to be re-created in the encrypted web content, or worse, in the URL itself.
Next, there is a key discovery problem: if one is encrypting end-to-end, one needs to have the correct key for the other end. If one allows for the possibility of receiving such information using non-oblivious methods to the desired web site, then it is possible to obscure the traffic in the future. But then an interloper may know at least that the site was visited once.
The other challenge is that there is no point of obscuring the information if the proxy itself cannot be trusted, and it doesn’t run for free: someone has to pay its bills. This brings us back to Jardine, and who is paying for all of this.
Does encryption actually improve freedom?
Perhaps the best measure of whether encryption has improved freedoms can be found in the place with the biggest barrier to those freedoms on the Internet: China. China is one of the least free countries in the world, according to Freedom House.
Paradoxically, one might answer the question that freedom and encryption seem to go hand in glove, at least to a certain point. However, the causal effects seem to indicate that encryption is an outgrowth of freedom, and not the other way around. China blocks the use of Tor, as it does many sites through its Great Firewall, and there has been no lasting documented example that demonstrates that tools such as Tor have had a lasting positive impact.
On the other hand, to demonstrate how complex the situation is, and why Jardine’s (and everyone else’s) work is so speculative, it’s not like dissidents and marginalized people are going to stand up for a survey, and say, “Yes, here I am, and I’m subverting my own government’s policies.”
Oppression as a Service (OaaS)
Cryptophiliacs believe that they can ultimately beat out, or at least stay ahead of the authorities, whereas China has shown its great firewall to be fully capable of adapting to new technologies over time. China and others might also employ another tactic: persisting meta-information for long periods of time, until flaws in privacy-enhancing technology can be found.
This gives rise to a nefarious opportunity: Oppression as a Service. Just as good companies will often test out new technology in their own environments, and then sell it to others, so too could a country with a lot of experience at blocking or monitoring traffic. The price they charge might well depend on their aims. If profit is pure motive, some countries might balk at the price. But if ideology is the aim, common interest could be found.
For China, this could be a mere extension of its Belt and Road initiative. Cryptography does not stop oppression. But it may – paradoxically – stop some communication, as our current several Internets continue to fragment into the multiple Internets that former Google CEO Eric Schmidt raised in 2018 thought he was predicting (he was really observing).
Could the individual seeking to have a private conversation with a relative or partner fly under the radar of all of this state mechanism? Perhaps for now. VPN services for visitors to China thrive; but those same services are generally not available to Chinese residents, and the risks of being caught using them may far outweigh the benefits.
Re-establishing Trust: A Government Role?
In the meantime, cyber-losses continue to mount. Like any other technology, the genie is out of the bottle with encryption. But should services that make use of it be encouraged? When does its measurable utility become more a fetish?
By relying on cryptography we may be letting ourselves and others off the hook for their poor behavior. When a technical approach to enable free speech and privacy exists, who says to a miscreant country, “Don’t abuse your citizens”? At what point do we say that, regardless, and at what point do democracies not only take responsibility for their own governments’ bad behavior, but also press totalitarian regimes to protect their citizens?
The answer may lie in the trust models that underpin cryptography. It is not enough to encrypt traffic. If you do so, but don’t know who you are dealing with on the other end, all you have done is limited your exposure to that other end. But trusting that other end requires common norms to be set and enforced. Will you buy your medicines from just anyone? And if you do and they turn out to be poisons, what is your redress? You have none if you cannot establish rules of the Internet road. In other words, governance.
Maybe It’s On Us
Absent the sort of very intrusive government regulation that China imposes, the one argument that cryptophiliacs have in their pocket that may be difficult for anyone to surmount is the idea that, with the right tools, the individual gets to decide this issue, and not any form of collective. That’s no form of governance. At that point we had better all be cryptophiliacs.
We as individuals have a responsibility to decide the impact of our decisions. If buying a bitcoin is going to encourage more waste and prop up criminals, maybe we had best not. That’s the easy call. The hard call is how we support human rights while at the same time being able to stop attacks on our infrastructure, where people can die as a result, but for different reasons.
Editorial note: I had initially misspelled cryptophilia. Thanks to Elizabeth Zwicky for pointing out this mistake.
Will the real Internet government please stand up?
This weekend, Google, Apple, and Amazon all took steps to remove the right wing conspiracy web site Parler from their services, steps that will cripple the social media site for some some period of time. In many ways, Parler had it coming to them. Amazon in particular alleged that Parler refused to take prompt action to remove abusive content that violated their terms of service.
In response, my right wing friends have gone nearly indiscriminately crazy, complaining that their 1st Amendment rights have been violated. Let’s review that amendment of the U.S. Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment I of the U.S. Constitution.
In other words, Congress cannot stop someone from speaking. But these companies are not Congress, nor an arm of the U.S. government. We could, however, say that they are a form of government, in as much as these companies, along with a small number of other ones, such as TikTok control societal discourse. What rules would govern them if they decided that moveon.org was also not to their liking? Could these services exclude content that criticizes them?
Parler is a relative newcomer. Much in the same way that Fox News has lost its conservative gleam to NewsMax, Facebook and Twitter lost their gleam when they started applying editorial control to posts. They did this because they gauged societal harm against whatever short term revenue they were collecting from the likes of Donald Trump. There was seemingly no reason they had to, at least in the United States. U.S. Law says this:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
Meddle with this rule at your peril. If we shift the burden of policing to online services, social media sites as we know them will cease to be, GMail and Yahoo! mail would be imperiled, and Amazon could no longer offer customer reviews. If there is a middle ground to be found, then scale factors must be considered. Any middle ground may well increase the risks of starting up new services. If the price of entry for a new Facebook or Twitter competitor is fancy artificial intelligence systems and patents, then we may have done ourselves no service in the long run.
There are other consequences to Apple and Google removing Parler from their respective phone and tablet stores: I saw one conversation in which someone was describing to her friends how to turn off automatic software updates. Software updates are the means by which developers correct vulnerabilities they have created. By disabling those updates, people leave themselves vulnerable to attack.
Today Parler is losing its voice, arguably for very deserved reasons. Tomorrow, some other site might lose its access. Will those reasons be just as good and who will decide?
Until Republicans police their own and use honest arguments, they cannot be trusted.
Over the last forty years, Republicans have developed some very bad habits. False equivalencies, out and out lying (such as claiming that Saddam had weapons of mass destruction), hypocritical stances (such as denying Merrick Garland a hearing for a position on the Supreme Court), accepting of lies for political expediency, and accusing the opposition of the very sins they commit are only some of the tactics that Republican base has grown to accept through networks such as Fox News and numerous zany online hysteria sites.
After a Berkman study found study (among many others) demonstrated that right wing media does not hold itself to account, and that Facebook is far more right wing than Twitter, Facebook began to take steps to address false reports. This led to criticism of social networks by President Trump, and a business opportunity for other purveyors of falsehoods. That is because Republicans can no longer survive without the falsehoods. A few people have noticed this danger, one of them being the founder of the founding online editor of the Washington Examiner and NewsBusters, Matthew Sheffield. In his own words:
I eventually realized that most people who run right-dominated media outlets see it as their DUTY to be unfair and to favor Republicans because doing so would some how counteract perceived liberal bias.
While I was enmeshed in the conservative media tradition, I viewed lefty media thinkers like @jayrosen_nyu as arguing that journalism was supposed to be liberally biased. I was wrong. I realized later that I didn’t understand that journalism is supposed to portray reality.
Mr. Sheffield wasn’t the only one to notice this problem. Last week Charles Koch put it quite simply: “Boy, did we screw up!” He did so by funding the Tea Party that fed on propaganda, not journalism.
The news echo chamber in which right wing people live live is not a threat to democracy, but is a threat to good, sound government, and to the health and welfare of the public. Donald Trump’s lies about the Corona Virus are merely the logical conclusion of a concerted attack that began with Rush Limbaugh in the 1980s, intensified with Fox News, and has led to such hate sites as InfoWars. Although Senator McConnell is smart enough not to peddle conspiracies, he has no problem profiting from them. He therefore does nothing to correct them, putting party before country. And so what do we get? Failure to recognize the risks of climate change, improper preparation for what became a pandemic that has led to economic destruction and chaos, and breeding of bigotry and violence.
Moral equivalences to justify some of Donald Trump’s more egregious acts seem to be a favorite. Previously we heard how, because cages were built under the Obama administration to house children for periods of up to 72 hours when they had no other place to go, it was therefore okay for the Trump administration to target migrant families for separation.
The latest claim from my friends on the right, led by people such as Representative Steve Scalise, has been that Donald Trump has the same right to use the courts to make whatever challenges he will, just as Al Gore did when he lost to George Bush in 2001. It is true that Al Gore did use the courts to attempt require a recount in certain districts. In that case, Gore and his legal team made very specific claims, and had evidence to advance them. They were these:
(1) The rejection of 215 net votes for Gore identified in a manual count by the Palm Beach Canvassing Board as reflecting the clear intent of the voters;
(2) The rejection of 168 net votes for Gore, identified in the partial recount by the Miami-Dade County Canvassing Board.
(3) The receipt and certification after Thanksgiving of the election night returns from Nassau County, instead of the statutorily mandated machine recount tabulation, in violation of section 102.14, Florida Statutes, resulting in an additional 51 net votes for Bush.
(4) The rejection of an additional 3300 votes in Palm Beach County, most of which Democrat observers identified as votes for Gore but which were not included in the Canvassing Board’s certified results; and
(5) The refusal to review approximately 9000 Miami-Dade ballots, which the counting machine registered as non-votes and which have never been manually reviewed.
Each of these claims were specific, backed up by facts that were not in dispute, and raised substantial questions of procedure, as demonstrated by the ruling of the Florida Supreme Court. The point here is not to re-litigate an election that took place 20 years ago, but rather to highlight how Mr. Gore used the courts in good faith, even if he lost in the end.
In this case, the Trump campaign has put forward wild claims that have not been backed by evidence or law. While President Trump and his cronies have whined about fraud to the press and to the American people, when they have gone to court, their tune has been very different.
In Pennsylvania, Arizona, Michigan, and Nevada, when asked if they were arguing that fraud had occurred, the answer was “No”. In Michigan or Wisconsin, where the best they could come up with were what they called statistical irregularities. In 2016, those same “irregularities” occurred in districts Trump won, and yet there was no complaint at the time. That’s because there was no actual evidence or testimony of any wrong doing. Mr. Trump is a sore loser. He has thrown spaghetti at a wall to see what would stick. He and his clown, Rudolph Giuliani, have wasted the time of the courts, and have attempted to undermine the very institutions he swore to uphold. In computing we would call this a Denial of Service (DoS) attack, in which the resources of courts and opponents are wasted by suits filed in bad faith. In Williamsport, Pennsylvania, US District Judge Matthew W. Brann, a lifelong Republican, castigated Mr. Giuliani for his buffoonish arguments, writing:
… this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.
In Georgia, Trump and his fellow loons have attacked the Republican Secretary of State for having followed the law and performed his duties. One of his loons, Russell J. Ramsland Jr., filed an affidavit that raised concerns about alleged incidents that didn’t even take place in the state. They have attacked various government officials in Nevada as well.
In the meantime, Republican senators and governors largely sat silent, allowing this travesty to continue. With one exception, the only people who dared to stand up to Mr. Trump were those who were retiring, or those who had just been reelected. That required no courage or leadership whatsoever. These people have been swayed by Trump’s media madness, worrying that they might not get re-elected, or thinking they might develop a political advantage when Biden is sworn in. Winning, not their oaths to their country, is all that matters to them.
Some will say that Democrats are no better, that Democrats obstructed Mr. Trump from the moment he came into office. Maybe there is some truth to this, but at least in the Democrat’s case, they used legal means and the stark truth to support their positions. Not so with the Right Republicans in Congress, and enablers such as Senator Collins.
There can be no reconciliation, nor can their be trust in their role in government, until Republicans police their own, starting with taking responsibility for not having stood up to a liar and bully, who harmed a great many people.
For years, a primary goal of Republicans has been to reshape the judiciary. They have done so using every tool at their disposal, but one of those tools was not honesty. Not even considering President Obama’s nominee Merrick Garland on the basis that such nominations aren’t entertained during a presidential election year, and then ignoring that logic to confirm Amy Coney Barrett as a justice was a demonstration of both hypocrisy and Might Makes Right. With Republicans having precipitated this crisis; should the Democrats take control of the presidency, the House, and the Senate; as it appears they will; they would be perfectly justified in making use of that might to correct such an abuse.
What could they do? At a bare minimum, since Merrick Garland isn’t on the court and Neil Gorsuch is, the Congress could pass a law, increasing the size of the court to eleven. President Biden could then appoint two more people to re-establish a balance.
Others have argued for even more radical changes, including among others term limits and selection criteria by party; all of which are likely to be constitutionally problematic. Whatever power the Democrats will have next year, they will almost certainly not have the power to enact amendments. Indeed even to go so far as to increase the size of the court they will almost assuredly have to do away with the filibuster rule in the Senate.
Stepping Away From the Brink
If the Democrats take any of these actions, they will be perpetuating the use of the Supreme Court as an ideological football. There is one group of people who can stop this from happening: the court itself, specifically conservative justices. This can happen in one of a few ways, but the most obvious one would be for one or more conservative justices to retire. At a spry 72, Clarence Thomas may feel that his best years are in front of him, and that the Democrats wouldn’t dare tinker with the court’s composition. Justice Alito is 70, and may feel the same way. They should think again. While Joe Biden has indicated that he doesn’t want to get into such structural changes, he hasn’t rule them out.
Another alternative would be a clear pledge from conservative justices to maintain the status quo of their own accord. This would be a bitter pill to swallow, because it requires that one sublimate deeply held principles for the good of the institution. Indeed, one might ask, if one were to do this, why not retire from the court?
Even one conservative stepping down would be patriotic. It would allow the Senate to re-establish a comity that has been absent under Mitch McConnell, allowing things to get back to normal. It would also allow some rational discussion of what if any court reform would be necessary, such that it could take place in a bipartisan spirit. Whoever does this would be establishing a legacy that would likely far outlast any decision on the court.