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Harvard Report Debunks Government's 'Going Dark' Encryption Claim

Federal investigative agencies like the FBI have long argued that encryption and other new technologies severely hamper their ability to spy on terrorists and other criminals, putting our safety at risk. A new report from Harvard debunks that "going dark" claim, concluding that the rise of network-connected devices will lead to more, not fewer, opportunities for surveillance.

Harvard's Berkman Center for Internet & Society convened a group of security and policy experts to explore questions of surveillance and encryption at a time when major tech companies like Apple and Google are encrypting their phones and other products by default. The 37-page report, released Monday, concludes that the feds' "going dark" argument falls flat on its face.

"Are we really headed to a future in which our ability to effectively surveil criminals and bad actors is impossible? We think not," the report says.

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FBI Director James Comey, in an October 2014 speech, argued that the law hasn't kept pace with technologies, like encryption, that have become "the tool of choice for some very dangerous people."

"We call it 'Going Dark,' and what it means is this: Those charged with protecting our people aren't always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority," Comey said. "We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so."

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But the Berkman Center report says it's unlikely that companies will ubiquitously adopt end-to-end encryption, because many of them rely on access to user data for revenue streams and product functionality. Furthermore, there is no industry standard for encryption.

The report also says the rise of connected devices and the Internet of Things offers new opportunities for surveillance. "The still images, video, and audio captured by these devices may enable real-time intercept and recording with after-the-fact access," the report states.

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The report concludes that the "going dark" metaphor isn't an accurate description of the future of the government's ability to intercept the communications of suspected criminals.

"The increased availability of encryption technologies certainly impedes government surveillance under certain circumstances, and in this sense, the government is losing some surveillance opportunities," the panel said. "However, we concluded that the combination of technological developments and market forces is likely to fill some of these gaps and, more broadly, to ensure that the government will gain new opportunities to gather critical information."