Google is the ringleader thwarting the FBI’s high priority to make smartphones subject to the Communications Assistance to Law Enforcement Act, CALEA, like all other communications technologies were before smartphones, so that the FBI can continue to wiretap, investigate and thwart terrorism (ISIS etc.), and crime, like it routinely did prior to the smartphone era.
(Anyone that doubts Google is the de facto encryption ringleader, see the evidence here. And don’t miss the fourth segment of this analysis about how Google cleverly thwarted the FBI in lobbying for a de facto anti-CALEA, last-minute, change to the FCC’s Open Internet order.)
The Problem
Two American companies’ operating systems, Google’s and Apple’s, control 97% of the roughly two billion smartphones in the world, Google-Android controls 82.6% global market share and Apple iOS 14.1% per IDC/Statista.
So just two American companies, GoogleNation and AppleNation, which autocratically govern global virtual populations of over two billion and over a half billion netizens respectively, are currently actively defying all sovereign American and foreign authorities’ rule of law.
That’s because they are unilaterally deciding to encrypt by default all communications from their devices/networks, in a manner specifically designed to thwart the ability of sovereign authorities, authorized with valid court orders and legal warrants, to access, decrypt, and read any communications on their networks for the purposes of national security and law enforcement.
In effect, two unelected, non-sovereign, autocratic business leaders, Larry Page and Tim Cook, are undemocratically and unilaterally trying to dictate to the world closure of the open Internet for law enforcement purposes, by “going dark” with encryption-by-default over the next few years.
Their two self-serving, competitively-conjoined, decisions threaten to de facto transmogrify the open Internet, that is currently subject to the accountability of openness and sunlight of law enforcement into the closed dark web of encrypted peer-to-peer networks, used largely by terrorists, criminals, human traffickers, pedophiles, pirates, counterfeiters, identity thieves, crypto-money-launderers, and other evil edge players who seek to hide from the rule of law.
What separates the light of the Open Internet from the darkness of the terrorist and criminal element of the Dark Web? -- pierceable encryption.
Simply, two leader’s decisions, that put their own perceived corporate interests above the actual best interests of law-abiding citizens who want, expect and need their sovereign governments to be able to protect them, threaten to turn the free and open Internet that we know and enjoy today, into an increasingly Dark Net of the lawless Wild West, in the matter of a few years. (Anyone that doubts the speed that this Internet change to darkness can happen, see the evidence here and here.)
Consider this. Does anyone think that if these two leaders and their headquarters somehow were taken hostage by terrorists or criminals, that they would not want any sovereign authority to be able to have the necessary anti-terrorism and law enforcement authority and capability to best protect, help or rescue them? Get real. When China hackers hacked Google in 2009, they ran immediately to NSA for help.
Important Perspective on How We Got Here
First, let’s hear from FBI Director James B. Comey, who in an October 2014 speech on “The Challenge of Going Dark” called for smartphones/tablets and the communications apps they enable, to be subject to CALEA, i.e. court-authorized wiretapping.
“We also need a regulatory or legislative fix [CALEA-like] to create a level playing field, so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to.”
Ever since World War II, American communications providers have been legally required to assist law enforcement and national security authorities’ authorized surveillance and investigations.
In 1994, when digital phone switches threatened to hinder national security and law enforcement’s authorized ability to wiretap the nation’s telephone network, a Democrat-led Congress unanimously passed CALEA by voice votes with no objections, and President Bill Clinton quickly signed CALEA into law. CALEA required that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure built-in surveillance capabilities for authorized government wiretaps.
Tellingly 1994 was the same year that President Clinton decided to privatize ownership and operation of the then government-operated Internet to private telecommunications companies that were at that time upgrading their networks with digital switches which made wiretapping technically different.
Thus it is obvious that there was near unanimous political consensus in the same year that the private Internet (ClintonNet) was officially born, that the Government should have duly-authorized wiretap access to digital telecommunications nationally, just like they had with analog telecommunications nationally for decades previously.
In 2004, the FBI, DOJ and DEA, got the Bush FCC to issue clarifying orders in 2005 and 2006 that kept CALEA up-to-date with the evolution of Internet technology, by ruling that broadband Internet Access and interconnected VoIP were subject to CALEA. The constitutionality and legality of those FCC decisions were upheld by the DC Circuit Court of Appeals in June 2006 per Wikipedia.
Second, this week FBI Director James B. Comey testified before Congress about tech companies’ refusal to allow Government to access their communications networks per CALEA.
He said: “The problem we face post-Snowden is, it’s moved from being available to the sophisticated bad guy to being the default. And so it’s affecting every criminal investigation.” And concerning the motives of tech companies encryption decisions, Mr. Comey stated: “It’s not a security issue. It’s a business-model issue.”
This week the Administration appeared to politically side with tech interests against FBI and national security concerns when White House Press Secretary Josh Earnest said "this is a question that I think tech companies are largely going to have to answer for themselves."
Well if it is a “business model” issue, why is the U.S. Executive Branch de facto politically delegating/ceding ~97% its national security and law enforcement responsibilities to the leaders of two companies, Alphabet-Google’s Larry Page, and Apple’s Tim Cook, who de facto control and dictate what happens for roughly 97% of the mass market for smartphones via Android and the iPhone, and apps through Google Play and Apple’s App Store duopoly.
Why is this Administration politically breaking with the national security and law enforcement policy of every Administration since WWII, and not actively seeking how to ensure that CALEA stays current with changes in communications technologies and innovations, like the Clinton Administration did in 1994 and the W. Bush Administration did in 2005, so that the FBI and other agencies can keep Americans safe and secure?
What is materially different about smartphones and communications apps since the advent of the smartphone in 2007, from the mobile phones’ broadband digital communications over the Internet that preceded them? There is nothing from a national security and law enforcement perspective, because they are just a different flavor of communication innovation that bad guys and evil terrorist organizations use today.
Third, the current encryption political stand-off appears to be the result of Google’s extraordinary political influence over the U.S. Executive Branch, (which is well documented here, here, here, here, and here.)
Given the old adage that people are policy, it should be no surprise that Google’s encryption position is prevailing when the current US CTO, Deputy US CTO, and Deputy CIO are all former Google employees. (See here for the full list of Google Guardians advancing Google’s commercial interests throughout the U.S. Executive Branch.)
Consider the public evidence of how Google’s Chairman Eric Schmidt was credited by Bloomberg, Time, & the Sydney Morning Herald with being very helpful in tilting the 2012 Presidential outcome.
Fourth, now let’s get to what may be the most telling and inappropriate act of political influence that Google did behind the scenes to thwart the FBI from getting the FCC to apply CALEA to Google, Apple and other “edge” providers’ communications.
National Journal published a telling and illuminating article this week spotlighting Google’s last-minute, behind-the-scenes, change to the FCC’s Open Internet Order so Google and edge providers’ Internet communications would not be legally classified as “telecommunications,” a legal distinction that would automatically make them subject to CALEA – just as the FCC’s Order was on path to do on its own -- until Google’s eleventh hour lobbying reversed it.
The National Journal article’s title and subtitle are telling: “How Google may have accidently undermined net neutrality rules: Judges had tough questions about a last minute change to the FCC’s regulations – one that came largely at Google’s behest.”
The incriminating Google ex parte document requesting the Google fix is here.
In a nutshell, Google told the FCC that it shouldn’t do what it was planning to do eight days before the FCC’s formal vote, i.e. classify the traffic between Google (and other edge providers) and the ISP as “telecommunications” subject to the FCC’s Title II common carrier authority that would give the FCC stronger authority to police Internet interconnection and peering agreements for the first time.
Given that the FCC had made it abundantly clear in its order that it did not want to apply common carrier regulation to the edge and that it would expressly forbear in a way that would ensure edge providers would not be captured by the FCC’s regulation of broadband providers, why was Google so panicked to get the FCC to change the order in a such a disruptive and intellectually-nonsensical way?
Google, after hearing FBI Director Comey’s call in October 2014 for edge providers to be subject to CALEA, apparently was scared that Google’s (and other edge provider) communications would be subject automatically to CALEA under the FCC’s developing order, which would thwart Google’s grand encryption master plan to encrypt the half of the Internet’s traffic (telecommunications) that goes through Google’s world’s largest network of networks and data centers.
Consider how self-serving and public-interest-harming this naked exercise of “The Google Influence Machine” was.
Google effectively politically-forced the FCC to adopt an intellectually-corrupt position that made the FCC order’s appellate prospects much more difficult -- as the National Journal article explains.
Google made the FCC adopt Google’s fantastical notion that the DC Circuit Court of Appeals was totally wrong factually in its Verizon v. FCC decision that the Internet enabled two-way communications between the broadband providers and the edge providers, and that there was a potential for a “two-sided market.”
Tellingly the FCC’s order retained a paragraph on CALEA, which said this FCC affirmed CALEA’s application to broadband providers’ traffic and that it would not forbear from that longstanding requirement.
Fifth, this brings us back to my first quote of FBI Director James A. Comey: “We also need a regulatory or legislative fix [CALEA-like] to create a level playing field, so that all communication service providers are held to the same standard…” Google used untoward political influence to thwart the FBI from gaining the CALEA authority it sought, and maintained an unlevel playing field between communications service providers that is commercially-valuable regulatory arbitrage.
Remember the clear stated law enforcement purpose of CALEA was: To amend title 18, United States Code, to make clear a telecommunications carrier's duty to cooperate in the interception of communications for Law Enforcement purposes, and for other purposes.
Anybody who supports FBI law enforcement, and who thinks that the rule of law should apply equally to similar entities and similar circumstances despite technology changes, should be deeply troubled, by how “The Google Influence Machine” has manipulated and subverted the nation’s law enforcement process – for its own commercial interests. Is anybody listening?
Sadly the result here is that Google’s commercial interests were put ahead of Americans’ best interests, unless you are a true believer that whatever is good for Google is good for America.
Conclusion
In a democracy, setting national security and law enforcement policy is the exclusive constitutional purview and responsibility of the people’s publicly-elected representatives and duly authorized government officials; it is not the responsibility of private companies or their individual leaders.
It also is ultimately the job of elected leaders to determine what the correct balance is between privacy and security, for their citizenry. Generally, constitutional due process is the fulcrum of how privacy-security interests are best balanced.
It is companies’ responsibility to then respect that Government balance of respect for privacy with required cooperation with government to protect their citizens’ safety and security.
We need to step back now and ponder a very big question.
How could America get so far off track that we could get into the situation we are in today where two business leaders’ businesses have so much market power and dominance in the marketplace, and such extraordinary political influence with a branch of the Federal Government, that Google and Apple are de facto dictating to the U.S. Government, the EU, and every other sovereign government around the world, that they unilaterally will make vast swaths of their populations’ communications dark to sovereign nations’ national security and law enforcement authorities?
In other words, how did our system of Government get this upside down about for whom it works? It looks a lot like the fault of crony capitalism, benefiting mostly Google, but also Apple and other Big Internet favored players at Americans expense.
Finally, Americans need to expect that their companies respect the rule of law, and that American Federal and State Governments fairly administer the rule of law.
Europeans and the EU, need to step back and remember what an EU scofflaw Google is in actively arguing: that the EC has no antitrust authority over, or factual case against, Google; that the EC or Member States can’t enforce European privacy law against Google; that Google can be passive-aggressive in implementing Europe’s Right to be Forgotten ruling; and that Google does not have to pay European taxes proportional to their earnings in the EU. Now on top of those major serial indignities, Google is the self-appointed global encryption ringleader that is effectively aiding and abetting ISIS and other terrorists and criminals, by making it easy by default for most everyone to go dark to evade sovereign law enforcement.
Other countries also will be watching how this plays out to learn if Google and Apple intend to respect their sovereign boundaries, authorities, and laws – or not.
Forewarned is forearmed.
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Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an emergent enterprise risk consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.
