Image (CC) by thekingofthevikings/deviantart
The tech world has (finally) come out against the FBI’s attempt to backdoor all smartphones, rightly characterizing the move as a sincere but foolish tactic that would invade our private lives and damage US tech companies. But is the government’s conflict with Apple sincere? Perhaps the encryption dilemma is being used for ulterior purposes.
When the Department of Justice, on behalf of the FBI, persuaded US Magistrate Sheri Pym to issue an order that would compel Apple to break the iPhone’s password lock, tech companies initially had little to offer by way of support for the Cupertino company. We read carefully non-commital tweets from Google’s Sundar Pichai [as always, editing and emphasis mine]:
”Forcing companies to enable hacking could compromise users’ privacy…intelligence agencies face significant challenges in protecting the public against crime and terrorism [but this] Could be a troubling precedent. Looking forward to a thoughtful and open discussion on this important issue.“
Then there’s Bill Gates’ baffling back-and-forth. At first, he supported the FBI and insisted that the “demand for a ‘back door’ into the iPhone would not set a wider precedent”. Then he said he was “disappointed” that he’s being depicted as siding with the FBI.
From other tech giants we heard…nothing. But then the tide turned.
On February 25th, Microsoft dispelled any doubt about where they stand by sending the company’s President and Chief Legal Officer Brad Smith to Washington where he declared that his company “wholeheartedly” supports Apple in its fight:
“We do not believe that courts should seek to resolve issues of 21st century technology with a law that was written in the era of the adding machine.”
Smith is referring to the All Writs Act, a law that was first enacted in 1789, passed in its current form in 1911, and remains the “go to” statute when the government wants to extract information from stubborn companies.
(This WinBeta article, whence the image of Smith with his antiquated adding machine, contains two short but elucidating videos in which Smith makes an eloquent case for better legislation.)
The next day, Amazon, Facebook, Google, and others declared their support for Apple’s position and announced plans to file Amicus Curiae (“friend of the court”) briefs by March 3rd. These filings are intended to help the Court by providing subject matter expertise, legal opinions, and other technical elaborations. They’ll be made public and will surely make for good reading and discussion.
As I watch the tech world rally behind Apple, as I listen to Tim Cook patiently and convincingly field thirty minutes of repetitive questions with his usual preternatural calm, and as I read through Apple’s Motion To Vacate Judge Pym’s February 16th order, I wonder: What possessed the FBI?
Then, I recalled White House spokesman Josh Earnest insisting, on February 17th, that the DOJ’s request didn’t amount to creating a backdoor, it was just for this one device, this one time, adding: ”The president certainly believes this is an important national priority”.
It’s become clear that the FBI’s “just for this iPhone, this one time” contention is dishonest. In a congressional hearing, FBI Director Comey acknowledged that the case could be “instructive to other courts” and, not very credibly, pleaded ignorance to other aspects, claiming he wasn’t a “good lawyer” (he served as Deputy Attorney General during the Bush administration). We know now that there are hundreds of iPhones awaiting the creation of a hacked operating system Apple calls “GovtOS”.
Did the FBI intentionally mislead the White House? Was the President’s staff persuaded that this was a very specific, opportunistic issue without broader consequences? We’ve seen it before: An agency or division impatiently takes matters into its own hands and “manages up”, plying their superiors with a set of plausible half-truths.
Had they been given the complete and honest story, the Executive Office certainly would have objected to the degradation of personal privacy and security, something Cook calls “the software equivalent of a cancer”. And surely they would have recognized the potential damage to the most valuable US companies: How could a once-trusted business sell “backdoored” technology, or resist foreign government demands to comply?
I wasn’t alone riding this train of thought. Among many who questioned the wisdom and consequences of the FBI’s actions, one prominent Apple observer put it bluntly:
“Actions by the leadership of the Federal Bureau of Investigation over the past month related to the San Bernardino encryption issue demonstrate a shocking level of dishonest and callous disregard for the nation’s core principles of democracy. FBI director James B. Comey should issue a formal apology or resign his post […]”
On further thought, however, I’m not so sure. I can’t really believe that the FBI would abuse the White House’s trust by launching an unauthorized expedition to force Apple to backdoor the iPhone. To the contrary, I think this operation was vetted at the highest level – but not for its apparent purpose.
Just this morning, the NY Times tells us that a meeting last month between White House staff and tech executives ended on a sour note. (Such stories are a part of a long tradition of “authorized” disclosures, articles based on trusted relationships between insider sources and writers.) Apparently, Chief of Staff Denis R. McDonough took exception to Cook’s reproaching the White House for “lacking leadership” on the encryption issue, and reportedly called Cook’s statements a “rant”. Other participants, the NY Times says, characterized the Apple CEO’s words as “respectful”. However…
“Soon after, Mr. McDonough brought the meeting to an end. ‘Put a pin in it,’ participants recalled that he said, making it clear that the conversation would continue….But one month later, the Justice Department moved against Apple.”
(For context, I encourage you to read the Wikipedia article on Denis McDonough. He clearly isn’t to be trifled with: One of eleven children of a Catholic family, played football, taught school in Belize, speaks Spanish, traveled in Latin America, and has extensive experience of Washington’s back alleys. Tim Cook may be tough, but so is President Obama’s Chief of Staff.)
In effect, as the authoritative NY Times article tells us, Cook isn’t fighting the FBI on our behalf, he’s wrestling with the White House. Does this put into question Apple’s chances of success in its quest to keep iOS and the data it protects truly private?
Perhaps…but maybe there’s yet another twist.
First, the White House clearly sees that tech companies are now actively supporting Apple. Whether their position is borne of a genuine concern for our rights or simply guided by their own economic interests doesn’t matter, they can’t be ignored.
Further, I find it hard to believe that President Obama — a professor of Constitutional Law — doesn’t recognize that backdooring US technology is inconsistent with his duty to protect our Constitution. Ironically, he could find support for objecting to the FBI’s request in words uttered in 1987 by recently-departed Supreme Court Justice Antonin Scalia:
”There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”
Words that didn’t escape the attention and pen of an insightful cartoonist:
At the risk of seeing too many wheels within wheels, I choose to see a political — and ultimately toothless — motivation rather than a dangerous raid on our liberties and our businesses. In an election year, a Law and Order posture is de rigueur. A good show of saber rattling is a much more effective charm than is explaining the subtle, reflective truth: Backdoors are a terrible idea.
Having struck the right notes, the issue can be delicately guided into a marsh of hearings and commissions where it will slowly sink. Until the next crisis.
Well stated. Justice Scalia would have nailed the FBI to the ground.
Could it be a vaccination for the declarations of Donald Trump on that matter?
But the request for a trap against villains will remain.
“We do not believe that courts should seek to resolve issues of 21st century technology with a law that was written in the era of the adding machine.”
-Microsoft President and Chief Legal Officer Brad Smith
It’s hard to believe that an educated person would make such a bad argument. It’s not the date of the law that matters, it’s whether the law in applied in the manner in which it was intended. By his logic, the first amendment’s freedom of the press provision, written in an era of hand operated printing presses, is not relevant to modern news distribution methods.
Agreed.
“Further, I find it hard to believe that President Obama — a professor of Constitutional Law — doesn’t recognize that backdooring US technology is inconsistent with his duty to protect our Constitution.”
I’m glad, JLG, to see that you understand the definition of a duty to “protect our Constitution,” where protect means “to act in accordance with” as opposed to “subvert” or “disregard.” Not many people get that. When you realize that this duty is articulated in the oath of office taken by every elected official and judge at the federal level, it makes your head spin. Just think of all of the violations… And what the proper response should be… Impeachments would be a weekly occurrence.
“Further, I find it hard to believe that President Obama — a professor of Constitutional Law — doesn’t recognize that backdooring US technology is inconsistent with his duty to protect our Constitution.”
Another thought on this statement…
Given that some of us have been noticing this sort of behavior for, oh, about seven and a half years now, it’s no longer hard to believe.
(Don’t think of this is a partisan political attack – this problem with Presidents taking actions that are “inconsistent with their duty to protect our Constitution” – has persisted among the Presidential set for longer than I’ve been alive. Not one has a clean record on this count.)
(Also, my screen name is my actual first name – it’s not a political statement of any kind.)
“Given that some of us have been noticing this sort of behavior for, oh, about seven and a half years now, it’s no longer hard to believe.”
Try like 15.5 years.
As I mentioned, it goes back further than 15.5 years, but it’s only for the last 7.5 that a constitutional law expert has been violating that very set of principles. Now, that’s irony for you.
I’m now going to offer a contrarian view on this issue from what I’ve seen in the tech press.
I’m not saying I agree with the FBI’s actions on this – I don’t. But I do understand the motivations behind their actions. The biggest fear of every elected official (and law enforcement agency) is being the one whose inaction allowed the next major terrorist attack.
To the case in question. The FBI has a phone. They have a warrant for the phone. It’s not irrational to say that there is a reason to believe that there might be relevant information on the phone. (I’m not saying there is a strong likelihood that there is relevant information – I know that it wasn’t the murderer’s personal phone – but to say that there is no legitimate reason for the FBI to want to access the phone’s contents borders on the irrational.)
So that’s the setup. They have the phone, but they can’t access the contents on their own. Does anyone think that the FBI should not ask Apple for help in unlocking the phone? The FBI would be derelict of duty if they didn’t ask for help in unlocking it. That’s no hyperbole on my part.
So they asked Apple for help. Apple denied their request in this case because they concluded that the actions required of them to unlock the phone would pose an enormous threat to the security of data for untold multitudes of people. I’m glad they did that. Good call on their part.
Now back to the FBI. They asked Apple for help, and Apple said no. Does anyone really think they were just going to drop the matter? Of course not. They are going to use every means available to coerce Apple into giving them what they want. The real question at this point is whether these are legitimate means. Does the law allow for the government to force parties uninvolved in any violation of the law to do their bidding? That’s the issue.
In closing, I understand the government’s position on this. It makes sense. I support the cause. But I’m not on board with them in case because the price of that phone’s data is simply too high.
They could have asked the NSA, nicely.
That’s a weird one, isn’t it?
I won’t name names, but some speculate that the NSA can accomplish the goal of accessing the info, but the FBI is going this route to set a precedent.
Regarding “I choose to see a political — and ultimately toothless — motivation rather than a dangerous raid on our liberties and our businesses”, this is a comforting choice. Hold it as long as you can, because it does not jibe with what we have seen in recent years. Governments have always hungered for this kind of power, and now technology is granting the means.
They’ve been lining this up for a while. They even broke the phone so that a Apple couldn’t provide its usual dump of iCloud data, never mind that there is unlikely to be any useful information on the device anyhow, seeing that the killers destroyed their personal phones but seem to have stopped using the work phone (possible clue there). Can the NSA really not crack it? Is this a concerted attack on Apple, because it could essentially be the beginning of the end for them if the FBI (and friends) win this, never mind destroy secure electronic commerce which has had several hiccups already.
What the hell is the Cabal’s endgame?
Jean-Louis, really appreciate your thoughts on this.
“Apparently, Chief of Staff Denis R. McDonough took exception to Cook’s reproaching the White House for “lacking leadership” on the encryption issue, and reportedly called Cook’s statements a “rant”. Other participants, the NY Times says, characterized the Apple CEO’s words as “respectful”. However…
“Soon after, Mr. McDonough brought the meeting to an end. ‘Put a pin in it,’ participants recalled that he said, making it clear that the conversation would continue….But one month later, the Justice Department moved against Apple.””
You, or the NYTs, make this sound like a personal vendetta, that McDonough did not like Cook’s reproach, and is now wielding the tools at his disposal. If true, he may be a fearsome fellow, but it sounds like “lacking leadership” may actually stick. Punishing your critics is not leadership.
US authorities could have treated the matter with Apple without bringing it to the public, as they did in the past. To me, the strange question is : why escalating this specific case to the public, the specific way they did ? I am not expert in US legal matters, but it seems to me that in this particular case, the legal ground is rather weak (writs act), whereas the public emotional response is/will be strong.
So, one may well argue that the whole thing is a conspiracy … for Apple to win, and set a precedent …..
So after jailbreak now there is FBI ?
NY Judge Orenstein just ruled in favor of Apple: http://hosted.ap.org/dynamic/stories/U/US_APPLE_ENCRYPTION?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2016-02-29-17-32-21
“Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come,” Orenstein wrote. “For the reasons set forth above, I conclude that it does not.”
It should be noted that Judge Orenstein’s ruling applies to an earlier case involving a drug dealer in New York City, not Magistrate Pym’s ruling in California on the San Bernandino shooting. I imagine both will ultimately move up to higher courts.
I wonder if President Obama does indeed recognize “that backdooring US technology is inconsistent with his duty to protect our Constitution.” but sees this more politically, and is playing the long game. There would seem to be two outcomes: 1) Apple eventually concedes, which would be a positive outcome for the FBI and, by extension, Executive action, or 2) Apple takes the fight to the Supreme Court, which, no matter how it rules in this case, will inevitably include an exhortation to Congress to update the law to something more apropos than the All Writs Act of 1789.
I agree – but they really need to keep in mind that any law that gets passed, or a pro FBI court ruling will result in every country from China on down demanding the same apply to them as well. And even US gov. and military use smartphones. Do they want all our data to get stollen by other countries or people around world start refusing to buy back doomed American products?
I really don’t think this was thought all the way through.
A link to Judge Orenstein’s order: http://www.scribd.com/doc/301280625/IN-RE-ORDER-REQUIRING-APPLE-INC
The Governments Worldwide will not stop on this matter.
I’m still not getting the hysterics about this specific issue. The US gov and others are conducting mass warrantless surveillance of their citizens’ activities using local device hacks and backdoors, networks sniffing, server-side warrants and more hacks…
Yet a warrant-backed search of a device that’s physically in the possession of law enforcement is an issue ? There’s a warrant. It’s not done remotely nor sneakily. The same is being done regularly to Windows, MacOS, Linux PCs…
Was John Olivier’s “Dick Pic” interview that powerful a wake-up call ? It should be applied retroactively, too …
The thing that makes this case special (I’m not saying better or worse than the others you listed) is that the government is claiming the power to force a party not involved in any crime to do its bidding. Is that a legitimate power that they possess? I think not, and I hope not.
When you add that it is highly likely that this case is not just about one phone of which they have lawful possession (the warrant, as you mentioned) but will extend to millions of phones over which they do not have any lawful grounds to access (and apparently cannot access), this seems like an important time to make a stand.
Here’s another way to look at it with three scenarios.
I. The government has the phone, and they are clever enough to unlock and decrypt it on their own. Good for them. Not so great for me personally, but I those are the breaks.
II. The government has the phone, and they are not able to unlock it on their own. They ask Apple for help, and Apple responds with a custom OS that can loaded onto that phone (and any phone like it), unlocking the phone. What the heck, Apple??!?
III. The government has the phone, and they are not able to unlock it on their own. Apple declines their request to help, and the government responds with a court order for help. Defying the court order risks a contempt of court charge (and whatever punishment the judge feels appropriate) against Apple. What the heck, government??!?
I agree. You are not getting it. There is a critical and fundamental difference between other parties attempting to hack into Apple’s phone, and requiring Apple to provide a mechanism for hacking. It could be argued that the former, over time, actually makes the phone more secure, as Apple is forced to continually improve in response. The latter on the other hand effectively destroys the possibility of security.
The importance of the distinction is hard to overstate. It really is almost black and white. Either Apple is able to protect its users, or its users are subject to intrusions by governments, hackers and criminals.
Authoritarianism always comes with a smiling face, until you crack the door, then it becomes a monster.
Reductionism gets us nowhere.
Apple has taken cues from Nature and Evolution in balancing end-user privacy with end-usage overall security and end-user personal security. Homo sapiens has gone through the grinding motion of this great balancing act before, in its long and non linear test run for sapience on two legs, two hands, two ventricles, two testicles, and two hemispheres. The Apple business model, in its take on Privacy and Security, walks this same path towards ambidextrous ambivalence in dealing with the probability of one seeing the sun rise for another day. On one hand…, on the other hand…
We, as a species, are but an integrated collection of organs and tissues that have developed over eons, and managed to thrive, and learned to collaborate through an integrated system of survivability. The layered skin tissues provide the first line of defense, a sort of barrier to entry, for the immune system to have a working chance to be effective, without undue burden to the overall state of equilibrium of the human body. And the human psyche has developed tangentially to this physical reality. Almost perfect symmetry between form and function in one real-ethereal space time continuum.
The immune system cannot cope with the massive influx of foreign agents through the shut-down of its first line of defense. Evolution brought them along to work together in symbiosis, as it carried forward in parallel the concept of the soul as its metaphysical, wholesome equivalent. And it worked, for, here we are…after all these tens, hundreds of millennia…
Countering brute force attacks is essential to the overall system of Privacy/Security, if one wishes to optimize the survivability dimension of said system. You and I, and the Attorney General of the United States of America, whether we admit it or not, through our very, and wearied, existence…and presence, rigorously concur with that postulate. To be secure measures up to be a whole. To be private measures up to be a whole. Privacy and Security measure up to be a whole…in one…singular, collaborative human being. For better, or worst. The better having had, until now, the last word…for we are, instead of we are not, aren’t we!? I surmise the end result to bloom as human integrity in its summative form: carpels, ethamines, petals, sepals of a differentiated humanity.
Kudos to Apple for aiming their mission statement, through their flagship ‘make-or-brake’ product, at staging a bold reflection on…and of the highest-order of I, You, and We…! On our way to Homo sapiens sapiens-hood…
berult.