It’s clear from his speech that Barr does not apply the First or Fourth Amendment to cell phones, even though the Supreme Court has already ruled he is wrong.
--The Communications Assistance for Law Enforcement Act (CALEA, 1994. Under President Clinton less you think this is a Republican issue) requires telecommunication providers to provide back-door access to all telecommunications systems for LE (law enforcement). This access by LE does require a warrant unless one of two circumstances apply: 1) if there is a threat that the information will be destroyed, or 2) if there is imminent threat to public safety. These, however, are the situations to which Barr is referring when he fear-mongers about terrorists, deaths, and encryption.
--LE has already been given back-door access to most of the critical servers that store information for users (Facebook, Google, Microsoft, Apple, Samsung…) Once you store the information on a third-party server, it’s considered “public” and loses Fourth Amendment protection. This means your phone back-up (Android & Apple), as well as e-mail left on the server, as well as pictures, events, and times, all can be legally accessed by LE without a warrant (most still do to help secure a conviction and stay clear of the Exclusionary rule). E-mail messages are private for a number of days, before they are considered “stored” and thus not “private” any longer.
--Five-Eyes (started after WWII and expanded for the War on Terror to include 14 countries!) is a circular spying ring desinged to get around the courts that protect each country's citizens. The spy agencies of New Zeland, United States, United Kingdom, Australia and Canada (+9 more) collect information on each other's citizens, then forward that information to the intelligence agencies to which the citizen belongs. Since courts and constitutions only have power in-country, other agencies don't have to follow restrictions dictated by courts and constitutions. Canada spies on United States citizens and gives that information to an undisclosed US agency to process. Distributing the spying around 13 other countries gives plausible deniability, while spreading the spying around makes it harder to pin-point exactly who is doing the unconstitutional spying. By now this world-wide spy ring is surely more than the known 14.
--The NSA already stores a copy of all internet traffic in its Utah datacenter. Barr is evidently above the menial task of taking the few minutes to request a FISA warrant. Those few minutes may cost lives, is his constant assertion. Besides this collection of everything-data, the NSA also actively works to weaken encryption (by putting back doors into encryption systems) through its Bullrun program. Apple is the last hold-out, resisting government accesst to users' data.
--What LE doesn’t have is a way to break encryption for Apple’s user device backups stored on Apple servers (IF and only IF the user encrypts their backups correctly). The generally accepted rumor is that Android and other devices use encryption that LE already has “back-door” access to. Only Apple has held out and fought for the Fourth Amendment rights of their users. Is there evidence to support these rumors? Only Apple has been sued by LE in an attempt to make Apple “break” (reverse-engineer) the encryption of their users.
--The standards for a Federal Warrant are less than the standards for a State issued warrant. According to Wallin & Klarich, a Federal warrant will be issued if a Federal Agency suspects you may have committed a crime. For a State warrant, (which varies slightly by state) a warrant will be issued after you have been accused of a crime. (https://www.wklaw.com/federal-warrant-work/). So, the Feds get their warrants on reasonable suspicion while the state has to have a higher level of evidence.
So, with all our data already accessible to LE and all our internet and cell traffic already stored on NSA servers, with telecommunications companies already providing back-door access to traffic, why does Barr find it necessary to read your communications as it happens (“in transit”)? If your “effects” and communications are secured, “it seriously degrades the ability of law enforcement to detect and prevent crime BEFORE IT OCCURS.” (It’s hard to find a place to start when a single sentence contains so many logical flaws and anti-Bill-of-Rights nuances.) He wants to know your thoughts in order to “prevent crime” and keep your thoughts from being “law-free zones, insulated from legitimate scrutiny.” He has gone way beyond limiting free speech, he wants to scrutinize your thoughts in every conversation so that data analytic firms can determine how you rate on the “probability of being a terrorist scale.”
At the beginning of the speech, Barr refers to the threat as “advanced encryption techniques,” a recognizable industry phrase. But his delusionary and over-used Armageddon of “warrant-proof encryption” goes a long way to show how his speech is designed to manipulate instead of stand on the grounds of fact & logic. (The fear-mongering is so exaggerated in this speech that books could be written about it. Maybe another day I’ll take on that project) He invented a new term about something that doesn’t exist, just to further manipulate emotions. There’s no such thing as "warrant-proof encryption," just encryption that is doing what it was designed to do. There are people that won’t unlock their phones for LE (since a Judge ruled you don’t have to since that would be self-incrimination). There are encrypted files that LE can’t unlock since the password/key holder is dead. But there’s no such thing as “warrant-proof encryption.” It’s a good thing he didn’t have Google or Disney make up a new scary term for “encryption” or it might have worked. In this case it just shows how he should not write his own speeches.
Since the NSA has everything recorded anyway, your backups are viewable, and your phone location/calls logged into server databases, I’m left wondering what does Barr really want? He uses terrorism and imminent danger to argue against search warrants, but there is already an exception for that. He uses technology against the Fourth Amendment but the Bill-of-Rights already considered this when it said “effects” are protected and the Supreme Court said our phones are protected. The kind of logic he uses is so Orwellian that even non-lawyers smell it coming. Even the lowest LE officer knows that making encryption illegal or inaccessible means that real criminals and terrorists will still use it. There are many end-to-end messaging apps that encrypt messages in their own way that would easily bypass any laws or Apple reverse-engineering.
Similarly, Barr’s assertions that the only way to stop or solve a crime is by reading the criminals phone is ignorant-hubris, especially for the person in charge of LE in the country. Whether it’s the speeding, the tail light malfunction, the illegal gun purchase, the illegal ammunition purchase, the RICO planning with others, or the past incidents a criminal has had with LE, there are many avenues to determining motive that don’t even require reading someone’s thoughts on their phones. Police know the ques and clues that go into every encounter. The final act is never the only clue or only crime.
Even if LE had 24/7 access to your live communications, what could they do with it? They would have to have someone reading everyone’s communication 24/7, forwarding it to a Judge for a warrant, and then have the police resources to act immediately. This may be his goal, but most police departments have enough real crimes to investigate, not to mention Barr’s “thought crimes.” So, what does he really want?
I’m left to wonder if this is about the Bureau’s fight with Apple. Apple is the only company that hasn’t bowed to Orwellian government, an interesting fact considering the Superbowl Macintosh ad in 1984. (https://www.youtube.com/watch?v=axSnW-ygU5g). In paragraph 27 of the speech, Barr overtly threatens Apple and Apple users. He states that if Apple provides advanced encryption techniques, their “business model is illegitimate” (illegal) as well is “any demand for that product” (making Apple users criminals as well).
The speech makes it obvious that he’s trying to break Apple’s hold-out (since they provide encryption that works). It seems that his greater goal is to bring Apple users into the fold of being analyzed by algorithms in order to rate their terrorism propensity. Since several mass shooters have used iPhones, that provides his motivation for adding their data to the pool. The question remains though, did shooters use Apple because iPhones are more secure or did they use iPhones because Apple hardware provides societal cache? That would be a question analyzing all iPhone user’s data could answer.
Barr’s actions provide him no other goal than to be the digital J. Edgar Hoover. Apple users are the last group of people not to be analyzed and reanalyzed by the terrorism-rating algorithms. If he would be able to incorporate that small group of users, he would have a vast majority of the population in his threat ranking system. His goal is to know your thoughts better than you do and to predict your behavior using algorithms. It’s the Minority Report meets 1984.
These systems are already in place overseas and especially in war zones. They help protect our troops and predict the actions of militants. Now, they’re coming here. All they need is as much data as they can get. Under Barr, an A.G. that rejects the Supreme Court, and doesn’t protect the Bill-of-Rights, even your children are ranked to provide a threat score. THIS IS WHAT HE WANTS: an authoritative dystopia ruled by unelected officials where if you think contrary to the group, you’re considered a threat and neutralized. After all, it’s much safer that way. Isn't it?
https://www.schneier.com/essays/archives/2014/02/its_time_to_break_up.html
https://www.schneier.com/essays/archives/2014/01/how_the_nsa_threaten.html
https://time.com/4966125/police-departments-algorithms-chicago/
https://www.start.umd.edu/publication/assessing-terrorist-risks
https://www.eff.org/deeplinks/2017/01/obama-expands-surveillance-powers-his-way-out
Here's a company that analyzes the data and predicts behavior. Palantir does it for ICE and other government agencies to the tune of $20 Billion dollars:
https://www.businessinsider.com/palantir-employees-ice-petition-alex-karp-2019-8/
https://en.wikipedia.org/wiki/Five_Eyes (for those of you who don't trust wikipedia, you can view each of the 130 supporting articles on which they base their information).
https://protonvpn.com/blog/5-eyes-global-surveillance/ (and the other 9)
Editorial Sidebar:
The fact is, using blogs, Facebook, Twitter, and other online information, you’ve already been rated by one or more agency (or hidden government department). We’re in an era where it’s not people who do evil deeds (since something we want can’t be evil), it’s guns, or blogs, or Heroin, or no-insurance, or the company or the government. It’s always the fault of something inanimate, not the person. It’s easy to see how this lack of responsibility for one’s self results in a loss of rights given to self by a “creator.” And once the creator is removed from life, there are no more absolute creator-given rights. The rights come from within and as such are plastic and morph, without standard or balance, without right or wrong. In this environment, it’s easy to give up our rights, since they’re fluid and meaningless anyway. Ideas like religion and integrity disappear into a controlled box of unlimited information, all shaped to make you buy something and vote liberal. 1984 has arrived. It’s just 30 years late and the participants are lining up to sacrifice themselves to Derrida and Nietzsche. As long as they have the latest smart-phone, they don’t care. And governments are happy to use that smart-phone barbiturate to rule the people.
Marx once said "religion is the opium of the masses." In this century, smart-phone induced egocentrism is the opiate of the masses. And it's being used against us.
