Sedition Prosecution Of Oath Keepers Members Shows The FBI Can Still Work Around Encryption

(Mis)Uses of Technology

from the it's-so-dark-we-could-only-indict-eleven-defendants-at-the-same-time dept

There is no “going dark.” Despite the FBI’s protestations otherwise — mostly embodied by FBI directors with axes to grind and narratives to sell — investigators aren’t finding encryption to be much of an impediment.

The FBI claimed — using stats irrationally inflated by (according to the FBI) malfunctioning software — that law enforcement agencies were drowning in devices whose content they couldn’t access. That turned out to be a lie. Perhaps it wasn’t a deliberate lie but it had certainly proved convenient. Once the FBI recognized its error, it promised to deliver an accurate count. In May 2018, the DOJ and FBI promised to release an updated number. The agencies still have yet to do so.

That brings us to the events of last January, when a bunch of dipshits decided the only way to restore democracy was to destroy it. A raid on the Capitol building in Washington DC — egged on by lame duck president Donald Trump and a handful of Congressional toadies — culminated in BlueLivesMatter hashtaggers attacking cops who stood between them and their twisted perception of justice. The effort failed, but the stain on American history — perpetrated by self-declared “patriots” — will last forever.

Since then, the FBI and DOJ have engaged in hundreds of investigations and prosecutions. The OPSEC of Capitol raiders was sometimes nearly nonexistent, but more than a few participants knew enough to utilize encrypted services for their communications. The fact that the government has investigated, arrested, and charged hundreds of Capitol raiders shows encryption isn’t holding it back.

The blockbuster indictment brought against several members of the Oath Keepers — one that includes seldom-seen sedition charges — makes it clear the FBI still has plenty of options when it comes to dealing with encryption.

Federal investigators say they accessed encrypted Signal messages sent before the Jan. 6, 2021, riot on the U.S. Capitol, and used them as evidence to charge the leader of Oath Keepers, an extremist far-right militia group, and other defendants in a seditious plot.

In a legal complaint made public on Thursday, the Department of Justice alleges the defendants conspired to forcefully oppose the transfer of power between then-President Donald Trump to Joe Biden, including by trying to take control of the U.S. Capitol.

The complaint references numerous messages sent on Signal, an end-to-end encrypted messaging app, raising questions about how authorities accessed them and recalling a longstanding point of tension between the law enforcement community and tech industry.

Questions have been raised, but there are no answers coming. The DOJ, FBI, and Signal have refused to comment on the news. But the simplest explanation is likely this: the DOJ and FBI found someone they could flip — a person who gave them access to their account and any stored messages. Other explanations are more speculative, but it’s not outside the realm of possibility that a federal agent infiltrated an Oath Keepers group, which gave them access to encrypted messages as a faux participant in the planned insurrection.

Of course, if it’s the latter, more questions will be raised. If the FBI had access during the planning, why didn’t it act to stop it? If this prosecution of Oath Keepers members has its basis in undercover work, the FBI and DOJ can expect to be asked difficult questions as the congressional investigation into the January 6th events continues.

According to the complaint [PDF], the defendants began their planning in late December 2020, using “encrypted and private communication applications.” Oath Keeper members — using these applications — agreed to grab their guns and head to Washington DC to stop the election results from being certified.

But the complaint shows the FBI had access before that. Or, at least, was able to access communications — possibly via another defendant — that dated back further than the late December messages where the raid plan coalesced. The complaint notes that members were discussing possibly violent responses to the presidential election as early as two days after it occurred. Again, these communications were taken from an “invitation-only, end-to-end encrypted group chat” on Signal.

These communications — which discussed reconnaissance of DC areas, weapons training, and what methods could be deployed to prevent election certification — continued all the way until January 6th, utilizing both Signal and encrypted email service, ProtonMail.

The complaint, obviously, does not explain how FBI investigators had access to these communications. But — in terms of the “going dark” narrative — this lack of explanation does not matter. The fact is the FBI obtained access to end-to-end encrypted messages. This alone undercuts its claims that widespread use of encrypted services and device encryption makes it impossible to investigate crimes. It can do this. It may occasionally be more difficult, but even people engaged in trying to overthrow the government aren’t able to keep the feds locked out of their discussions.

“Going dark” is still a myth. To be sure, encryption may sometimes keep investigators separated from evidence. But the rise of encryption isn’t keeping investigators locked out. They still have plenty of options, ranging from grabbing communications from cooperating defendants or witnesses to pulling massive amounts of useful data from cloud services and third parties. Holding onto this narrative when event after event proves it wrong shows the FBI is more interested in obtaining easy access to everything, rather than utilizing its considerable budget and expertise to mitigate the limitations encryption can pose.

Filed Under: doj, encryption, fbi, going dark, oath keepers, sedition, stewart rhodes
Companies: signal