EFF sues Justice Department to discover if secret orders are used to decrypt user data
EFF (the Electronic Frontier Foundation) has filed a Freedom of Information (FOIA) lawsuit against the Justice Department. The digital rights group wants to learn whether the government has made use of secret court orders to force tech companies to provide access to encrypted user data.
After the Apple vs the FBI battle, there has been renewed interest in how companies handle not only encryption, but government requests for access to such data. With services such as WhatsApp enabling end-to-end encryption, attention has now switched to what might be happening in the background without users' knowledge. While Apple very publicly refused to provide decryption keys, EFF -- and others -- are concerned that secret court orders may be used to hide what is really happening.
The Apple case in particular showed how the likes of the FBI make use of public courts to apply for access to data, but the EFF is concerned that "it is unclear to what extent the government has sought or obtained similar orders from the FISC". A particular worry is that "FISC operates mostly in secret and grants nearly every government surveillance request it receives".
The Electronic Frontier Foundation says:
The FBI’s controversial attempt to force Apple to build a special backdoor to an iPhone after the San Bernardino attacks underscored EFF’s concerns that the government is threatening the security of millions of people who use these devices daily. Many citizens, technologists and companies expressed similar outrage and concern over the FBI’s actions.
Given the public concern regarding government efforts to force private companies to make their customers less secure, EFF wants to know whether similar efforts are happening in secret before the FISC. There is good reason to think so. News outlets have reported that the government has sought FISC orders and opinions requiring companies to turn over source code so that federal agents can find and exploit security vulnerabilities for surveillance purposes.
The argument is that any orders -- public or secret -- that force companies to provide access to encrypted data reduce not only privacy, but also security. Those orders that are public allow for debate and discussion, but the very nature of secret orders prevents this. EFF Senior Staff Attorney Mark Rumold says:
Even setting aside the existence of technical assistance orders, there's no question that other, significant FISC opinions remain hidden from the public. The government’s narrow interpretation of its transparency obligations under USA FREEDOM is inconsistent with the language of the statute and Congress' intent. Congress wanted to bring an end to secret surveillance law, so it required that all significant FISC opinions be declassified and released. Our lawsuit seeks to hold DOJ accountable to the law.
You can read through the full complaint on the EFF website.