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Do governments need access to encrypted messages to thwart terrorism?

Would greater government access to messages sent through secure communication technology help intelligence agencies fight terrorism? Judy Woodruff gets views from Stewart Baker, former assistant secretary of Homeland Security, and Kate Martin of the Center for American Progress.

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  • JUDY WOODRUFF:

    The tech industry is against giving up encrypted or backdoor information. In October, the Obama administration backed down from its earlier request for access, appearing to accept the argument this would simultaneously open the door to hackers, cyber-criminals and terrorists.

    And let's break down some of these questions about whether more government access would help fight terrorists.

    Stewart Baker was the assistant secretary of homeland security during the George W. Bush administration and he was general counsel at the National Security Agency during the 1990s. And Kate Martin closely watches these issues as a senior fellow at the Center for American Progress.

    And we welcome you both back to the program.

    Stewart Baker, to you first. Is there any doubt in your mind that we now know ISIS has capability to encrypt that we didn't know they had before? We had Congressman Ed Royce on just a few minutes ago on the program, chairman of the House Foreign Affairs Committee, and he declared that.

  • STEWART BAKER, Former General Counsel, National Security Agency:

    So, I — there's no doubt that they have the ability to encrypt in ways that we can't break into. Whether they have used that in this particular attack is not clear.

    But the fact is, we all do. Any of us could download an app and have more or less perfect encryption today.

  • JUDY WOODRUFF:

    But you're saying that — you're saying there is new technology that they have that's now…

  • STEWART BAKER:

    There's nothing — there's no indication that there's some special new encryption technology that they're using. Many of the things that are being complained about by the senators are tools that have been developed and commercialized over the last several years.

  • JUDY WOODRUFF:

    So, Kate Martin, how do you see their capability after the Paris attacks?

    KATE MARTIN, Center for American Progress: Well, I don't know that we know anything about their capabilities with regard to using encryption in the Paris attacks.

    What we know is that the French intelligence services had apparently identified the ringleader as a terrorist before the attacks. And even when people use encryption, they can't hide the metadata which shows who they're communicating with. So the associates of that ringleader were knowable to the French intelligence service.

  • JUDY WOODRUFF:

    Already.

  • KATE MARTIN:

    Already.

    And so one wonders. You know, we're for law enforcement access to information, including encrypted information, when it has a warrant in the United States. But one has to wonder why all of this talk about encryption when there's no indication that it was the problem in the Paris attack?

  • STEWART BAKER:

    The problem here is that, even with a warrant, the FBI wouldn't be able to get access to the communications. If they're encrypted, no warrant will get you in.

    And that's the source of many of the objections we have heard from Jim Comey and others. They feel, we have a social contract that if we have a warrant, we can see the material. Now that contract's been broken by this new technology.

  • JUDY WOODRUFF:

    Well, but the administration — as we understand it, the administration backed off on its urgent request that the technology industry provide a backdoor to this technology that gives…

  • STEWART BAKER:

    That's right.

  • JUDY WOODRUFF:

    I don't think anyone argues it has the potential to give terrorists a tool that they don't now have.

  • KATE MARTIN:

    Well, but the tool is a limited tool. It's a powerful tool, but it doesn't hide who they are communicating with.

    And on the other side, whatever the U.S. government says or requires of U.S. companies is going to do nothing to stop the availability of encryption that's developed overseas.

  • STEWART BAKER:

    I think you have said that twice now. I just don't think it's true.

    Encryption used to provide TOR, which was one of the technologies that was discussed here, also allows to you anonymize who you're talking to. You can't tell who is sending the message to this person because it's run through several different encrypted nodes, and when it comes out, it's not tied to the person who sent it. So, now it's unreadable and untraceable.

  • JUDY WOODRUFF:

    So, what — well, Stewart Baker, let me stay with you, then. What should the government capacity be?

  • STEWART BAKER:

    So, this is a very hard social problem.

    My sense is that in the U.S. this is going to be a significant debate. How much privacy do we want and how much in the way of terrorist communications are we willing to tolerate? I don't think that debate is going to be anywhere near as difficult in the rest of the world.

    We saw one of our closest allies, the U.K., come close to requiring access. The French are likely to respond to this by saying, it's those American companies who made us less safe. And I predict they will start regulating.

  • KATE MARTIN:

    Well, I hope that before they turn all their attention to, oh, we need more surveillance, or we need to stop commercially available encryption, which I think is probably impossible to do, that they take a hard look at, why did the French fail to prevent or were they — was it impossible to prevent that attack, and come up with an understanding of what the problem was, before talking about solutions that aren't related to the what seems to have been the problem.

  • JUDY WOODRUFF:

    Well, for example — excuse me, but, for example, today, the chairman of the FCC has said it's time for the government to look at strengthening the wiretap laws. He talked about the use of the game — PlayStation4 and said, we have got to look at changing the law to update our ability to deal with this emerging threat.

  • STEWART BAKER:

    Well, it is interesting that, back in the '90s, the government was faced with digital technology for telephones, cutting off our access to wiretaps, and it said, we're going to regulate everybody who provides telephone service, even the new cell phone providers.

    They have ended that to Internet — voice-over Internet communications. And it sounds as though he's at least exploring the idea that other tools that allow communication should be subject to that requirement.

  • JUDY WOODRUFF:

    And you think that's a good idea?

  • STEWART BAKER:

    Well, it's very hard to actually enforce those rules against people who are just releasing apps, because they could be anywhere in the world. So, it's a major regulatory challenge to actually make that work.

  • KATE MARTIN:

    It doesn't seem workable. And it seems a diversion.

    And I'm afraid that it's a diversion from, what should we really do and what can we really do to stop the next attack, like the one that happened in Paris?

  • JUDY WOODRUFF:

    You mean in the non-surveillance arena?

  • KATE MARTIN:

    Oh, no, that surveillance is one tool that's very important, and it's just not true that it's totally going dark.

    It's been made a little bit more difficult, but the NSA, the FBI, and the French intelligence have massive numbers of ways to conduct surveillance. And it's also not true that, as I understand it, that the computer scientists are pretty clear that metadata is still available to show a person's associates, and that there's no way to hide all of that in some way.

  • JUDY WOODRUFF:

    Well, we know — and you're referring to the just massive collection of data about communications between people, whether it's telephone and on the Internet.

    We're going to have to leave it there. This is clearly something we're all going to be continuing to talk about.

    Kate Martin, Stewart Baker, we thank you both.

  • STEWART BAKER:

    Thank you.

  • KATE MARTIN:

    Thank you.

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