CTO Marcus Thomas: “The Wicked Problem of Going Dark”

In today’s CEO Perspective, Subsentio president and CEO Steve Bock speaks with CTO Marcus Thomas on the issue of law enforcement “going dark” in the face of rising challenges that make it increasingly difficult to obtain evidence for investigations under current laws such as CALEA.

As the former Assistant Director of Technology for the FBI, with a long and distinguished career in law enforcement, Thomas was present at the start of the “going dark” problem and is one of the most respected authorities on the issue. His insights on how “going dark” has evolved from an occasional to an ever-present and increasingly convoluted challenge are highly relevant at a time when criminals and terrorists have access to a near-limitless array of technologies to conceal their identities and activities. Fraught with complexity, “going dark” is now what Thomas calls a “wicked problem” with so many factors in play that conventional problem-solving techniques are overwhelmed and inadequate.

Bock: Marcus, it’s well-known that you headed up Technical Operations at the FBI, but the scope of your assignment there is probably less well understood. Just how big a job was this?

Thomas: Given the dominance of communications technology in everyday life, and the inevitable spillover into criminal and terrorist activity, the FBI’s involvement in technology is both broad and deep. We were literally responsible for the management of every type of technology used to gather evidence. In all, I oversaw some 750 employees plus 300 contractors. The largest group were in the Washington, D.C. area, and the rest assigned to local FBI offices, but all reported up to the department.

Bock: How does your background relate to or support your work at Subsentio?

Thomas: The goal of a trusted third party like Subsentio is to support its communication service provider clients by executing the lawful use of technology in a way that meets the needs of law enforcement while fully protecting subscriber privacy.

Bock: As the FBI’s former senior executive in charge of technology, and more recently in your work for Subsentio, you have seen the problem of “going dark” first hand. How has this problem evolved over the years?

Thomas: When the issue first emerged at the beginning of the Internet era it was called “going blind,” and it referred to the gap in lawful intercept capabilities that we began to see with new types of services never envisioned by CALEA. Although we didn’t know it at the time, the comparatively simple realm of lawful intercept on the public switched telephone network was undergoing a gradual but very significant change. As this change progressed, the popular coinage became “going dark,” but it meant the same thing — loss of visibility on criminal and terrorist activity due to advances in technology that would soon become universal.

Bock: So “going dark” was like a flash fire?

Thomas: It might seem so, but in retrospect the better analogy is the one about the frog sitting in a pan of water as someone raises the temperature one degree at a time. The frog doesn’t realize he’s being cooked. Similarly, no one in law enforcement could possibly have foreseen that the “going dark” issue was heading to an inevitable boil.

Bock: Lately you’ve described “going dark” as a “wicked problem.” That has a very specific and even ominous meaning. For example, complex challenges in chess and advanced math are often described as simple compared to a wicked problem. Can you elaborate?

Thomas: “Going dark” is a “wicked problem” because there are so many issues involved — security, encryption, privacy and Bitcoin for secretive funding of terrorist cells, to name a few. Then we have the multitude of parties involved, each with separate needs and interests: technology companies, analysts, academia, the media, plus federal, state and local law enforcement, standards setting bodies, Congress, policy making agencies and the judiciary. Finally there is rapidly advancing technology reflected in new service offerings such as social media, VoIP, the cloud, open source intelligence, biometrics, forensics, textual analytics, mobile location and on and on.

Bock: What’s the end result?

Thomas: There are several. First, there are challenges in trying evaluate a “wicked problem.” Second, there is no perfect resolution that resolves the problem 100 percent, or to the full satisfaction of all involved. Finally, it is impossible to anticipate every potential outcome. As a classic “wicked problem,” the “going dark” issue is way beyond merely being complicated. It is intensely complex.

Bock: What about the recent legal conflict between Apple and the FBI over obtaining evidence from the San Bernardino terrorist’s iPhone – does that fit into the “wicked problem” category?

Thomas: The unpredictable outcome of that incident is the very definition of a “wicked problem.” Apple set out to protect the privacy of its customers, but the company’s actions had the opposite effect. When Apple refused to obey the magistrate’s court order, then vowed to fight the issue in court, the FBI simply conducted a brute force attack on the San Bernardino iPhone and obtained the evidence it had sought. Clearly, Apple did not anticipate this, nor did they foresee the negative impact on public and customer perception of the company’s much-vaunted strong encryption. If Apple had helped in this one instance, the matter would have been solved quickly and quietly, and ended there. Instead they adopted a hard line attitude that backfired on them.

Bock: Putting Apple aside for the moment, isn’t it difficult for a major high tech company to criticize lawful intercept and forensics as an invasion of privacy while quietly making products used by law enforcement to gather evidence?

Thomas: I try to look beyond any presumptions about such behavior. Once again, “wickedness” strikes. Different parties within a large corporation might have legitimate but opposing agendas. For example, some corporate policymakers might criticize lawful intercept on the grounds of privacy concerns, while others understand the public safety and national security concerns involved. Off to the side and completely divorced from policy you often find product development teams that are responsible for portfolios spanning both commercial and lawful intercept functionality. Finally, there are CEOs, COOs and Boards of Directors who must mediate between a company’s diverse interests, with the goal of answering to its most important constituency: shareholders.

Bock: Many view the Edward Snowden incident as a pivotal event. From that point on, many tech companies increased their resistance to cooperating with law enforcement, which in turn made the “going dark” issue worse. What is your take?

Thomas: It definitely had an impact. Going back in time, Apple and other tech leaders were once very cooperative with law enforcement. However, when the first stories on Snowden appeared in June 2013 it was a major embarrassment to some companies. As the public turned hostile on national security, the curtain came down on technology companies’ assistance. But remember that public sentiment is a volatile thing. With the subsequent rash of cyberattacks in the U.S. and the recent escalation of terrorist violence in France, Belgium, India and elsewhere, the needle of public opinion is moving back the other way — but unfortunately not, as yet, to the extent of influencing political leaders to take action that would help law enforcement deal with “going dark.”

Bock: Is there any hope for a solution to the “wicked problem” of “going dark” that satisfies all sides, and if so, what is the best approach?

Thomas: Yes, there is a solution. The first move is to recognize that there is no going back in time to the days of plain old telephone service, or “POTS,” and comparatively simple wiretaps. That era is ancient history and will never come again. But we can progress in steps. There is good cause to believe that the various opposing players can reach agreement on what might constitute an improvement, if not full resolution of “going dark.” We can find common intent and work harder to evaluate the problem. We can treat solutions to the “going dark” challenge as phases of a laboratory experiment where we tinker and make improvements without doing any damage to privacy rights. Such balance is essential. I believe that pursuing an even-handed approach is do-able and the best way forward.

Bock: Sounds reasonable, but no matter how many adjustments are made to gain headway against “going dark,” aren’t we all still laboring under laws that are out of sync with the times?

Thomas: It is a truism that policy always lags technology. Tim Berners-Lee invented the World Wide Web in 1989 and made the first deployment of this revolutionary technology in 1990. Yet the Communications Assistance for Law Enforcement Act passed by Congress in 1994 – half a decade after Berners-Lee transformed the communications industry — did not cover the Web! That said, with certain changes that followed, CALEA has proved to be very flexible and the law is widely viewed as a success. It has proven to be an excellent framework for lawful intercept. But has the time come for a fresh approach that brings policy up to speed with technology? Absolutely.