Filings In Facebook's Lawsuit Against NSO Show FBI Director Chris Wray Was For Encryption Before He Was Against It
I have opined that FBI Director Chris Wray needs to shut the fuck up about encryption. Wray has presented a completely skewed perspective on the issue, following in the footsteps of Jim Comey. Wray claims encryption is leading to a criminal apocalypse, even as crime rates remain at historic lows. He also claims encryption is making it impossible to follow through with investigations, but has presented no evidence to back this claim.
The best argument the FBI could present was its always-growing number of encrypted devices in its possession. In the space of a couple of years, the number jumped from less than 900 to nearly 8,000. This seemed to indicate encryption was a growing problem, but when the FBI tried to verify this number for Congress, it found out it had overstated the amount of locked devices in its possession. In reality, the number of locked devices is likely less than 2,000 -- hardly the apocalypse of impregnability Wray and Comey continuously presented. This was discovered in May 2018. The FBI has yet to hand over an accurate count of these devices.
Now, there's this bit of news, which surfaced during Facebook's lawsuit against malware developer, NSO Group. Chris Wray was for encryption before he was against encryption. Documents filed by Facebook detail Wray's defense of WhatsApp and its encryption in an earlier legal battle while Wray was working for the King & Spalding law firm. [paywall-free link here]
In the earlier case, which has never been made public, Mr. Wray, then a partner at King & Spalding, was hired to analyze and protect" WhatsApp's software from a Justice Department effort to weaken its encryption in order to conduct wiretap of a WhatsApp user's data.
The arguments made by Mr. Wray's firm in favor of WhatsApp's encryption may undercut his recent calls to push tech firms - including his previous client WhatsApp - to roll back encryption, a move many security experts have likened to a government backdoor."
Facebook wants King & Spalding booted from the case, citing its previous involvement in defending WhatsApp against actions brought against it by the DOJ. Facebook raises a good point: someone with intimate knowledge of WhatsApp's inner workings shouldn't be allowed to use this inside information to defend itself against this lawsuit.
Facebook's redacted motion [PDF] names Chris Wray as one of the litigators with inside information, gleaned during a still-sealed legal proceeding that appears to have dealt with the DOJ seeking a court's permission to break (or block) WhatsApp's encryption to deploy wiretaps.
At the time, WhatsApp was in the process of implementing end-to-end encryption of communications sent on its platform.
[...]
WhatsApp was jointly represented by King & Spalding and ZwillGen PLLC. Specifically, Christopher Wray, Catherine O'Neil, Nick Oldham, and Paul Mezzina of King & Spalding...
Another filing [PDF] -- a letter sent from Facebook's legal reps to NSO Group after it became apparent it was seeking to retain King & Spalding -- names Chris Wray as well.
The man who declared Facebook's move to encrypt Messenger communications as a gift to the world's criminals once defended WhatsApp's encryption against the DOJ's attempt to have it broken or blocked. This apparently occurred around the same time the DOJ was trying to get Apple to break the encryption protecting the San Bernardino shooter's iPhone.
The New York Times learned of the 2015 matter through confidential sources. At the time, the Justice Department was also engaged in a court battle with Apple, pushing the company to unlock an iPhone belonging to one of the gunmen in a shooting in San Bernardino, Calif. The government ultimately dropped its case after security researchers helped them bypass Apple's security.
The FBI sees no problem with Wray's shifting allegiance to encryption. Its statement to the New York Times says the agency supports Wray, no matter how inconsistent his stance. Apparently, it's fine that he's willing to change his views to match his employer's.
"Like all other lawyers, his duty of loyalty was to his client, and he did not put his personal views ahead of his clients' interests or allow them to affect the legal work he did for clients. Today, as director of the FBI, his duty is to act in the best interests of the American people."
If that's his new duty, he's falling short. He's acting in the best interest of the FBI and federal prosecutors -- the same FBI that also used to recommend people secure their devices with encryption. Strong encryption is in the best interests of the American people. Wray isn't serving the nation with nearly as much fervor as he apparently defended encryption back when he was getting paid to defend it. WhatsApp's encryption remains unbroken, despite the DOJ's efforts. If he didn't feel it was worth defending then, he probably shouldn't have defended it. This change of heart doesn't necessarily make him a hypocrite but it is just one more reason he needs to shut the fuck up about the subject.