By Brandon Davis, PoliticKING
Photo courtesy: Wiki Commons
Earlier this year, in their investigation of the San Bernardino, Calif., terrorist attack, the Justice Department attempted to require Apple to remove security features from a locked iPhone so the F.B.I. could guess the password. After the case stirred privacy concerns and garnered media attention, a still undisclosed, private consultant developed a way to hack into the phone without Apple’s help, and sold the idea to the F.B.I. The F.B.I got the information they needed and dropped the request for Apple’s help, but the controversy did not end there. Speculation remains over whether the F.B.I ever really needed Apple’s help, or was using the terrorist attack as a means to gain public approval in forcing the tech company’s cooperation with this – and future cases.
In a development reported on by The New York Times, it appears some answers might lie in a secret F.B.I. operation from 2003, known as “Operation Trail Mix.” At the time, agents had been intercepting phone calls and emails from an animal welfare group that was suspected of sabotaging operations for a company using animals to test drugs. Unfortunately, the agents hit a roadblock when encryption software made the emails unreadable. So, investigators attempted something new. They talked a judge into allowing them to remotely, and secretly, install software on the group’s computers in an attempt to get around the encryption.
“This was the first time that the Department of Justice had ever approved such an intercept of this type,” an F.B.I. agent wrote in a 2005 document summing up the case. The following year, six of the activists were convicted of conspiracy to violate the Animal Enterprise Protection Act. An appeals court upheld the convictions in 2009, saying that the use of encryption was “circumstantial evidence of their agreement to participate in illegal activity.”
The Justice Department, which is required to report every time it comes across encryption in a criminal wiretap case, did not do so in 2002 or 2003. It remains unclear why, and neither the Justice Department or F.B.I. commented in the NY Times article.
The “Trail Mix” documents provide a glimpse at the F.B.I. and the actions they have taken for years regarding people who use technology to keep their affairs secret. This case shows that the F.B.I has had growing frustration with encryptions long before their dealings with Apple. More importantly, it reveals that agents built and used surveillance software earlier than was originally known.
“The documents show that the F.B.I. has been in the hacking business for a long time,” said Chris Soghoian, a technology analyst with the American Civil Liberties Union who reviewed the records.
To build support for laws requiring companies to allow government access to data in unencrypted form, the F.B.I began a campaign called “Going Dark” in 2008. As is speculated still today, they also saw the fight against terrorism as an opportunity to gain new authority. In a 2002 email, an F.B.I official said, “The current terrorism prevention context may present the best opportunity to bring up the encryption issue.”
A month later, the justice Department considered a bill outlawing the use of encryption to conceal criminal activity, but the bill did not pass. The bill was referred to as "Patriot Act 2."
A congressional committee announced that Apple, Inc. and the F.B.I will return to Congress later this month to testify before lawmakers about their weighty disagreement over law enforcement’s access to encrypted devices.
Security researchers and civil liberties advocates say a ban on strong encryption might cause more problems, suggesting encryption is necessary to keep malicious hackers at bay and protect the overall security of the Internet.
Attorney Salar Atrizadeh of the California State Bar cyberspace law committee joins Larry King to discuss keeping privacy in the digital age:
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