FBI Is Using Classified Tools For Regular Investigations And That's Going To End Up Hurting Everyone

Legal Issues

from the when-'going-dark'-just-means-parallel-construction dept

A recent Inspector General’s report laid bare the FBI’s real motivations in the San Bernardino shooting case. It didn’t want a technical solution. It wanted judicial precedent. While the DOJ presented its claims that no tech breakthrough was forthcoming, the FBI’s left and right hands were operating independently. Technically, this means Comey and the DOJ did not lie when they told a federal judge and Congress (respectively) that an All Writs Act order was the only solution.

But dig deeper into the report, and you’ll find information much more damning than some truth-fudging. One division of the FBI, which had been explicitly asked to search for a way to hack into the locked iPhone, only made a half-assed effort to do so, in hopes of slow-walking the FBI into favorable precedent. The FBI’s cryptographic unit (CEAU) was supposed to keep looking for a solution, but it didn’t. It asked some cursory questions and then sat back to watch the courtroom drama.

Another area of the agency — one supposedly limited to national security investigations — did manage to find a solution via a third party. The Remote Operations Unit had this vendor drop everything else and work on an iPhone crack to help the CEAU out. Unfortunately for the helpful ROU official, the CEAU head didn’t really want a solution and was irritated when one was found.

The reason the CEAU and ROU weren’t speaking to each other directly was related to the ROU chief’s belief its tools were not meant to be used in standard criminal investigations. The CEAU, however, felt it could use national security tools possessed by the ROU whenever necessary, even when the investigations had nothing to do with the agency’s national security work.

Joseph Cox at Motherboard points to a couple of footnotes in the Inspector General’s report that indicate the FBI has ignored this “wall” at least twice in the past.

One mentions the ROU chief, based on long standing policy, sees a “line in the sand” against using national security tools in criminal cases—this was why the ROU initially did not get involved at all with finding a solution to unlocking the San Bernardino iPhone.

[…]

“The ROU Chief was aware of two instances in which the FBI invoked these procedures,” a footnote in the report reads. In other words, although it seemingly only happened twice, the FBI has asked for permission to use classified hacking techniques in a criminal case.

The report does not provide any more info about the FBI’s internal wall-breaking, but Cox speculates it may have something to do with its child porn investigations. The malware the FBI deployed to expose visitors of darkweb child porn sites was originally unclassified, but the FBI attempted to classify the exploit post-deployment for supposed national security reasons. And, indeed, the FBI has deployed this twice (that we know of) to target child porn site visitors.

The wall is there for a reason. If the exploits and tools are classified, the use in standard criminal investigations raises the chances they’ll be exposed in court. It also initiates mission creep. Powerful tools become routinely-deployed exploits, eventually lessening their effectiveness and slowly (but surely) stripping away the layers of opacity surrounding them.

This is what has happened with Stingray devices. Originally, the repurposed military gear was used in only the most dire situations. Now, they’re used to track people stealing fast food. In the process, the tool no one ever wanted to talk about has gone mainstream, with extensive paper trails emanating from courtroom decisions and public records requests.

The FBI had concerns Stingrays would become exactly what they are now: standard equipment, rather than overpowered tools that should only be deployed when public safety is threatened. It knew the slippery slope towards standardized use would end up exposing the devices and their capabilities. This is why it tied up agencies with non-disclosure agreements and demands it be consulted whenever info about Stingrays was requested by the public or at risk of being disclosed in court.

But there’s another side effect of breaking down this wall between national security and vanilla law enforcement. The implications of this range far beyond the possible burning of a useful investigative tool. When the FBI uses classified tools to engage in normal investigations, defendants are placed at a severe disadvantage.

“When hacking tools are classified, reliance on them in regular criminal investigations is likely to severely undermine a defendant’s constitutional rights by complicating discovery into and confrontation of their details,” Brett Kaufman, a staff attorney at the ACLU, told Motherboard in an email. “If hacking tools are used at all, the government should seek a warrant to employ them, and it must fully disclose to a judge sufficient information, in clear language, about how the tools work and what they will do,” he added.

Perhaps the FBI’s Remote Operations Unit was more aware, or simply more considerate, of the Constitutional implications of bringing hacking tools over the wall. The CEAU chief, at least according to this report, was less concerned about the constitutional implications but extremely worried any new tool might undermine the DOJ’s push for compelled assistance precedent. As a whole, the FBI is only mildly concerned about violating rights. The agency’s continuous creation of easily-indicted “terrorists” is only part of the problem. Beyond that, the agency appears to be willing to use any tools to achieve any ends… including ignoring its many options if there’s a chance a court might deliver an opinion it can use to force US companies to crack open devices for it.

Filed Under: doj, fbi, san bernardino