If, in some future nightmare scenario come true, the FBI needs to break the encryption on a private i-phone to find the secret code to defuse the Doomsday Machine President Donald Trump set up after his mind finally snapped and he thought he was the Stay-Puft Marshmallow Man, I assume that Apple won’t stand on principle and will do what needs to be done to save the world. The current dilemma, however, is not that dire.
Although President Obama announced last year that he had decided not to pursue legislation requiring tech companies to give law enforcement access to users’ encrypted data, he proved once again that if you don’t like Obama’s promises, just wait a minute. For last week, the FBI persuaded a judge to order Apple to create software that would help federal investigators crack into the iPhone 5C that terrorist Syed Rizwan Farook was using before he and his wife slaughtered guests at his company Christmas party in San Bernardino last December. Apple has vowed to defy the order.
The government doesn’t have the right to force private companies to do its bidding and create new vulnerabilities for their own products and the customers who depend on them, harming the companies’ the reputations for data security. As usual, this administration can’t be bothered to do things the way the Constitution directs, and have laws passed that acknowledge new needs in an era of sophisticated technology and terrorist threats—or not. No, it follows the model championed by this President, and prefers to govern by edict and strong-arm tactics. (Do you think the judge that issued that warrant had any idea what the real technology and security issues are, much less understand the technology involved?) Fortunately, Apple has the resources and motivation to stop its rights and ours from being steamrolled and a terrible precedent from being established.
It would be a terrible precedent. This is not the existential exception to the rule, where the government can trample rights because the alternative is mushroom clouds everywhere as Vera Lynn sings “We’ll meet again.” As Techdirt has been explaining repeatedly,
The FBI absolutely does not need to know what’s on that phone. It might not even care very much about what’s on that phone…. there’s almost certainly nothing of interest on the phone….Farook destroyed his and his wife’s personal phones, indicating that if there were anything truly important, he would have destroyed the last phone too. Also: the FBI already has a massive amounts of data, all of which indicates that Farook and Malik were not in contact with a foreign terrorist organization, nor were they in contact with any other unknown terrorists. Even if, despite all evidence to the contrary, Farook and Malik were somehow in invisible traceless contact with an ISIS handler, that handler would not have revealed information about other cells, because that would violate the most basic tenet of security — need to know. Other information, including things like who they were in contact with could be obtained from other sources — either service providers for metadata or from the phones of those they were in contact with.
I’m sure the FBI would like to know what’s on that phone, but liking and needing are materially different. This is a utilitarian ethics problem, and the issue is balancing. Is doing permanent damage to the rights of corporations and individuals ethically justified by the circumstances? No. Indeed, of course no. Our government thinks it is, because our current government has insufficient respect for the Constitution, the limits of government, and individual rights.
Techdirt, which has been wonderfully clear on this issue, also did an excellent job eviscerating the responses of every one of the Presidential candidates, pointing out that this is not a situation where there is some ideal middle ground: either the government can order a company to destroy its own product’s security, or it can’t.
“If you think there’s a “middle ground” you don’t understand the issue,” Techdirt notes. “The thing that they don’t get is that the “nerd problem” here is: How can you make a security vulnerability that only can be used by the good guys? That’s impossible. Creating a security vulnerability opens things up to the bad guys. Period. And, of course, neither of [the candidates’] answers tackle the actual issue at stake, which is to what level the US government can force a company to hack its own customers and undermine its own systems’ security. They’re really answering a different question. Because either they don’t understand the issue or they don’t actually want to be pinned down on it. “
Oh, I think it’s fair to say that they don’t understand the question. Especially those tech whizzes, Hillary “Like with a cloth?” Clinton and Bernie Sanders. You should read the whole Techdirt piece, but here’s some of its analysis of various candidates’ responses when asked about the controversy. It’s depressing, but educational:
“Donald Trump is getting the most attention. Starting earlier this week he kept saying that Apple should just do what the FBI wants, and then he kicked it up a notch this afternoon saying that everyone should boycott Apple until it gives in to the FBI. Apparently, Trump doesn’t even have the first clue about the actual issue at stake, in terms of what a court can compel a company to do, and what it means for our overall security….
Bernie Sanders did the “on the one hand/on the other hand/I won’t actually take a stand” thing: “I am very fearful in America about Big Brother. And that means not only the federal government getting into your emails or knowing what books you’re taking out of the library, or private corporations knowing everything there is to know about you in terms of your health records, your banking records, your consumer practices…On the other hand, what I also worry about is the possibility of another terrorist attack against our country. And frankly, I think there is a middle ground that can be reached.”…
Hillary Clinton did the same thing, trying to straddle the line by admitting a backdoor sounds problematic, but really, if the nerds just nerd harder, can’t they figure something out: ‘But she concluded with a favorite law enforcement talking point: that the smart people in America can surely solve this problem and find a way to help the FBI access encrypted communications with a little brainstorming and teamwork, [saying] “As smart as we are, there’s got to be some way on a very specific basis we could try to help get information around crimes and terrorism”…
The rest of the Republican field basically did the same thing as Sanders and Clinton. On the one hand this, on the other that. It’s classic “don’t pin me down” so I don’t piss off one constituency politicking..
Cruz: “They have a binding search order…I think we can walk and chew gum at the same time. We can protect ourselves from terrorists and protect our civil rights.”
Yeah, again, that’s not the issue. Yes, they have a court order. And that is fine, if Apple had full access to the content and just needed to turn that over. Everyone agrees with that. But that’s not the issue here. It’s whether or not Apple can be compelled to go much, much further, and build a way to hack their own customers, removing security features, so that the FBI can more easily access encrypted content.
Marco Rubio? Same on the one hand/on the other hand bullshit: “If you create a backdoor, there is a very reasonable possibility that a criminal gang could figure out what the backdoor is..We’re going to have to work with the tech industry to figure out a way forward on encryption that allows us some capability to access information – especially in an emergency circumstances.”
So, we need to work together to allow some capability… that Rubio himself admits will lead to “a very real possibility that a criminal gang” will exploit. Guess what the larger risk is: a criminal gang targeting your data, or being caught in a terrorist attack? It’s the former, not the latter, and yet Rubio is pretending they’re the same.
Next up to bat, John Kasich. He’s even worse. Not only does he not understand the issue, he doesn’t even give one of those on the one hand/on the other hand answers, suggesting he doesn’t even know the key part of all of this: “I don’t think it’s an example of government overreach to say that, you know, we had terrorists here on our soil and we’ve got to understand more detail about who they may have been communicating with.”
…But that’s not the debate. The debate is if in trying to collect every possible bit of content, they have the power to commandeer a tech company and have it build tools to undermine that company’s own security systems.
Ben Carson, shows his usual level of confusion, suggesting Apple is only doing this because it doesn’t trust the government and then giving another wishy-washy answer: “I think that Apple, and probably a lot of other people, don’t necessarily trust the government these days,” Carson said. “And there’s probably very good reason for people not trust the government. But we’re going to have to get over that because right now we’re faced with tremendous threats, and individuals, radical jihadists, that want to destroy us. And we’re going to have to weigh these things, one against the other. I believe that what we need is a public-private partnership when it comes to all of these technical things and cyber security because we’re all at risk in a very significant way,” Carson said. “So it’s going to be a matter of people learning to trust each other, which means Apple needs to sit down with trustworthy members of the government, and that may have to wait until the next election, I don’t know, but we’ll see.”
This response makes absolutely no sense, and is almost self-contradictory. He’s basically admitting that the government might misuse such powers, and even suggests the Obama government in particular would do so. But his government, of course, would be fine. If you’re a Presidential candidate and your argument for a powerful surveillance tool is “well I don’t trust the other guy to use it, but you can trust me…” you’ve already lost….
Fortunately, Techdirt and Apple do understand the issue, even if our pathetic Presidential candidates don’t have a clue. They are right. The government is wrong.