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ACLU Spotlights FBI’s Encryption-Breaking Tool in Freedom of Information Suit

If, in fact, the FBI has achieved this capability, it means that devices such as cellphones and laptops that have encryption to protect information no longer can be counted on to protect users’ privacy. If past history is an indicator, when the government achieves a capability to spy, it will use it with or without legal authority and then deny that such action took place. Digital privacy would virtually disappear, as federal courts have rarely pushed back on these digital fishing expeditions.

The FBI has made a well-publicized effort to force tech companies to build a “back-door” into all electronic devices, and former Attorney General Robert Barr made a similar request before he left office. It turns out that this was just another form of FBI and DOJ misdirection or as one privacy expert said, “theatre.” EDAU apparently already has the capability to search even supposedly secure iPhones with its new software tools.

The FBI attempted to defeat the ACLU’s legitimate FOIA filing by filing a deceptive GLOMAR response, which essentially means that the agency refuses to even acknowledge if the filing’s sought-after information even exists. The ACLU’s lawsuit argues, however, that the “public interest in the records sought by Plaintiff’s requests is clear ... the government’s forensic capabilities are a central aspect of the policy debate over law enforcement access to encrypted communications ... the public needs to know about the governing policies and forensic capabilities of relevant FBI units, including the EDAU.” It also noted that parts of the FBI program had been revealed in previous court filings.

As noted by the ACLU, the FBI “aims to keep the American public in the dark about its ability to gain access to information stored on our personal mobile devices. But it’s not that the FBI has just shut the door on this information – they’ve shut the door, closed the windows, drawn the shades, and refused to acknowledge whether the house that we’re looking at even exists ... Our privacy and security are at stake.”

The robust efforts of the FBI and DOJ to preserve secrecy on the existence and activities of EDAU might not only be based upon its aversion to publicity of its digital investigative methods but the fact that it may very well be that the FBI no longer maintains the capacity to carry out its assignments without extensive forensic tools, legitimate or otherwise. See: American Civil Liberties Union Foundation v. Department of Justice, 3:20-cv-09284 (Dec. 22, 2020 N.D. Cal.). 

 

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Related legal case

American Civil Liberties Union Foundation v. Department of Justice

 

 

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