From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud Peter Swire Moritz College of Law Ohio State University TPRC 2012 September 22, 2012

Current Research: Crypto & De-Identification Encryption and Globalization India, China, and first full legal/policy analysis since the crypto wars Going Dark vs. a Golden Age of Surveillance From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud (todays paper) Next: De-ID project with Future of Privacy Forum Law and policy of masking technologies The articles available online

Setting the Context … 1990s FBI and NSA worry that encryption would block lawful surveillance 1999 White House shift to permit strong encryption Why Johnny Cant Encrypt Whitten & Tygar, 1999 Low encryption adoption Tech literature had not shifted from that view

Encryption Adoption Now Widespread VPNs Skype & other VoIP Blackberry Gmail now, other webmail soon SSL pervasive (credit card numbers) Dropbox & many more Facebook enables HTTPS, may shift default Result: interception order at ISP or local telco often wont work What are the agencies to do?

Ways to Get Communications 1. Break the encryption 2. Get comms in the clear (CALEA) 3. Get comms before or after encrypted (backdoors) 4. Get stored communications, such as in the cloud #4 is becoming FAR more important, for global communications Also, temptation to do more #2 and #3

Overview Local switch Phone call Telecom Company Alice Bob

Overview Local switch Phone call Telecom Company Alice Bob

Bob ISP Alice ISP %!#&*YJ# Hi Bob! Many Nodes between ISPs Alice Bob %!#&*YJ#

Problems with Weak Encryption Nodes between A and B can see and copy whatever passes through Many potential malicious nodes Strong encryption as feasible and correct answer When encryption adoption rises...

Encrypt Encrypted message – Hi Bob! Alice Bob's public key Bob's private key – Alice's local ISP Decrypt Hi Bob! – Bob's local ISP – Backbone provider Bob

Ways to Grab Communications 1. Break the encryption: 1. Keys are with the individuals 2. Crypto today is very hard to break 2. Get comms in the clear 1. CALEA requires that for phone 2. FBI proposal to extend to Internet 3. Get comms with hardware or software before or after encrypted (backdoors) 4. Get stored communications, such as in the cloud

Dont Extend CALEA to Internet Bad cybersecurity to have unencrypted IP go through Internet nodes How deep to regulate IP products & services WoW just a game? Make all Internet hardware & software be built wiretap ready? That would be large new regulation of the Internet Could mobilize SOPA/PIPA coalition

Ways to Grab Communications 1. Break the encryption 2. Get comms in the clear 3. Get comms before or after encrypted (backdoors) 4. Get stored communications, such as in the cloud

Governments Install Software? Police install virus on your computer This opens a back door, so police gain access to your computer Good idea for the police to be hackers? Good for cybersecurity?

Governments Install Hardware? Reports of telecom equipment that surveil communications through them Can phone home Good to design these vulnerabilities into the Net? Chinese Telecoms May Be Spying on Large Numbers of Foreign Customers [The Atlantic, 2/16/2012]

Ways to Grab Communications 1. Break the encryption (but cant) 2. Grab comms in the clear (but CALEA a bad idea) 3. Grab comms before or after encrypted (but backdoors a bad idea) Therefore: 4. New emphasis on stored communications, such as in the cloud

Conclusions Technology Gmail & Skype can encrypt, even if Johnny cant Change our assumptions about adoption Law Important emerging debates on data retention mandates & lawful access rules Split between have & have not jurisdictions Industry Cloud providers at the center of future debates on government access