The Week that Was: All of Lawfare in One Post

Lawfare kicked off the week with a post from FBI Director James Comey on encryption and “going dark,” following up on his conversation with Ben on the topic last week. “My job,” Director Comey wrote, “is to try and keep people safe,” and he sees a potential danger in the trend toward universal strong encryption that law enforcement can’t crack. Senator Ron Wyden (D-OR) disagreed, and his office commented in detail on Director Comey’s post (with the use of the annotation site Genius, most often used for rap lyrics).

Debate over “going dark” continued on Lawfare over the course of the week. Susan Landau added to her earlier commentary on the subject, critiquing the push for built-in “backdoors” allowing decryption. In Susan’s view, these backdoors will unavoidably represent a security risk. Paul also weighed in with some thoughts on the rapid changes in encryption technology that have brought on Director Comey's concern, and suggested mandatory biometric encryption as a solution that would bring us back to the status quo ante of encryption in the 1990s. He continued his thoughts with a suggestion that “encryption providers may be required to adopt a government sponsored ‘backdoor’ technology if, and only if, the methodology for that technology has been published publicly for more than 12 months and no efforts to subvert or defeat it have been successful.” Herb Lin posted a quick response.

Director Comey brought his concerns on encryption to the Hill on Wednesday, testifying before both the Senate Judiciary Committee and in a rare public hearing of the Senate Intelligence Committee. Cody linked us to video of the Senate hearings along with the prepared statements of both witnesses and members of the committees. Ben pondered Comey’s testimony and theorized that, while the Director has presented his concerns primarily in terms of “merely describing an emergent problem,” the path ahead will probably lead to a proposal for legislation mandating “backdoors.”

Over at Rational Security, “going dark” was the week’s topic du jour:

Bruce Schneier commented on Wikileaks’ new release of information on NSA surveillance of German officials, noting that a crucial spreadsheet of surveillance targets and selectors gave us a rare “glimpse… into the bureaucracy of surveillance.” Bruce also examined the recently released documents on the NSA’s XKEYSCORE program, which show the mechanics behind NSA surveillance.

Michael Knapp brought us news of the Second Circuit’s grant of an en banc rehearing in United States v. Ganias, concerning whether the retention of digital files outside the scope of a warrant constitutes a Fourth Amendment violation. The rehearing, Michael suggests, might lead the courts to reconsider what constitutes a “search” versus a “seizure” in Fourth Amendment jurisprudence as applies to digital duplication and retention.

Paul continued the week’s coverage of privacy and surveillance issues with an excerpt from his soon-to-be lecture series on the aforementioned topics. His post compares two “parables” on privacy: Jeremy Bentham’s famous Panopticon and the Ring of Gyges from Plato’s Republic.

Ben acknowledged some possible errors in his post last week on the OPM hack, as pointed out by a senior intelligence official. Perhaps, he says, the intelligence community wasn’t aware of the weakness of OPM’s security systems prior to the data breach—but nevertheless, some agency other than OPM must bear a degree of responsibility for the breach.

Stewart Baker posted the Steptoe Cyberlaw Podcast, this week featuring cyberlaw expert Catherine Lotrionte:

Bobby considered the recent resurgence of “preventative prosecution,” used by law enforcement to arrest suspects at comparatively early stages of potential plots—a tactic used commonly in the months and years immediately after 9/11. “The wheel,” Bobby writes, “has come round again.”

Speaking of domestic terrorism, Daniel Byman reviewed Bryan Burrough’s book Days of Rage: America’s Radical Underground, the FBI, and the Forgotten Age of Revolutionary Violence.

Wells alerted us to two recent developments in Mukhtar al Warafi’s challenge to his continued detention in Guantanamo, on the grounds that the conflict between the United States and the Taliban has come to an end. A date for a hearing has been set for July 14 (this coming Tuesday). In addition, Al Warafi’s lawyers have filed a brief in response to the United States’ earlier filing as to the continuation of U.S. efforts against the Taliban and al Qaeda, which reiterates Al Warafi’s reliance on President Obama’s public statements indicating the end of armed conflict in Afghanistan.

On that note, in the Foreign Policy Essay, Stephen Watts and Sean Mann pondered the topic of “Afghanistan after the Drawdown.” They argue that the United States should prepare to settle in for the “long haul,” and go on to consider what that long haul might look like.

This week’s Lawfare Podcast also featured discussion on the question of U.S. military deployment to the Middle East and South Asia. Check out the podcast for audio of the first-ever Brookings Debate, on that oh-so-crucial question: “Should the U.S. put boots on the ground to fight ISIS?”

Aaron Zelin posted translations of an article by Dr. Abdullah bin Muhammad al Muhaysini and a brief statement from the Taliban. Meanwhile, Yishai Schwartz and Jennifer Williams provided the Middle East Ticker.

Finally, as nuclear negotiations with Iran drag on over the weekend, Suzanne Maloney offers a detailed consideration of the five main issues at the center of any prospective deal. Sanctions, the regional reaction in the Middle East, and U.S. domestic politics all feature prominently.

And that was the week that was.