The FBI and Apple are locked in a titanic struggle over the future of privacy, surveillance, and security. In case the rock under which you find yourself is obscuring your view, there is currently an ongoing legal battle surrounding a magistrate’s recent ruling compelling Apple to “recode” a variant of its iOS operating system to permit the FBI to access the iPhone of one of the San Bernardino shooters. Much has already been written about the details involved in this battle, but a few issues that have flown under the radar are now creeping to the surface.
To begin, there are questions of technical feasibility at play, with some reporting that Apple has actually done precisely what the FBI is asking it to do dozens of times before. However, all of those situations involved information—mostly held in iCloud storage—that Apple could actually access. This situation is far different, as the FBI is specifically asking the company to re-engineer its iOS operating system to accommodate a “brute force” attack through the iPhone’s security architecture. While many are correct in asserting that this is not a backdoor to the actual encryption protocols being used to protect the iPhone, it is a backdoor in the broader sense of the term—that is, it would permit law enforcement to access data they otherwise would be unable to.
There is also a debate raging over the legal issues at play in this fight. Some contend that the All Writs Act doesn’t apply to Apple in this particular case. Others argue it clearly does. Some point out that this is not an issue of encryption, per se, and that surveillance is not the fundamental issue in this particular legal decision. Others argue that the issue of surveillance is indeed the overarching theme of this push by the FBI. And still others are clearly straddling the fence on offering pontifications on future events. One thing is certain: there is an awful lot of confusion surrounding this discussion, from the technical feasibility, to competing legal arguments over the court’s ruling. That confusion is likely to continue dominating this discussion over the next week and beyond. But those uncertainties are obfuscating the real battle currently raging in the public forum.
In general, the essence of what I have seen in the debate around this technical/legal battle is not that some are simply supportive of Apple and others of the FBI. It’s that many are getting lost in the weeds of nuance. And while there is a great deal to parse through when discussing complicated technical topics (secure enclaves, bootloader chains, root file access, etc.) and the legal case history and implications of using the All Writs Act for this purpose, we should not lose sight of what is truly at stake here from a policy angle. The Cato Institute’s Julian Sanchez has a great piece over at Time that sums up the true essence of this fight. Sanchez contends, and I concur, that this is:
a fight over the future of high-tech surveillance, the trust infrastructure undergirding the global software ecosystem, and how far technology companies and software developers can be conscripted as unwilling suppliers of hacking tools for governments. It’s also the public face of a conflict that will undoubtedly be continued in secret—and is likely already well underway.
Of course, FBI director James Comey maintains that his agency isn’t seeking a new precedent that might very well result in a broad expansion of its authority. This effort, he maintains, “is about the victims and justice.” That may very well be true, and far be it for me to second guess the motives of law enforcement agents engaged in this investigation. However, it is worth pondering whether we should be taking the agency at its word, especially given mounting evidence that this entire debate has been part of a broader, multi-pronged strategy employed by the FBI and the White House to defeat encryption. A debate that is very likely being stoked by the agency as part of a Xanatos Gambit, in which whatever the outcome, law enforcement ultimately gets its way.
How has Apple responded to the intellectually muddied waters in this brawl? In a brief FAQ posted on their website, Apple tackles some of the broad questions associated with this ongoing debate. Perhaps most notable, however, is the concluding statement:
Our country has always been strongest when we come together. We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms. Apple would gladly participate in such an effort.
The Commission that Apple is referencing is very clearly a tip of the hat to a legislative effort proposed by Sen. Mark Warner and House Homeland Security Chairman Michael McCaul, which was announced last December. Apple now seems fully supportive of this approach. And last Friday, the Wall Street Journal editorial board also came out in support of the proposed legislation. The Niskanen Center has long been supportive of the Commission, arguing that it is “a reasonable path forward on providing law enforcement with the tools they need to combat terrorism and criminal misconduct,” while still protecting strong encryption. The need for this Commission is all the more apparent in an environment currently charged by strong emotions over law enforcement’s role in accessing personally-held data in the digital age. Chairman McCaul’s Commission is likely the best path forward in dealing with the challenges.
But it’s important to take this particular step forward for another reason: if recent history has shown us anything, it’s that those charged with securing the life and liberties of the American people have come up short on fulfilling the latter objective. Since the 2001 attacks on the World Trade Centers, Constitutionally-protected civil liberties have been routinely offered up to the altar of security and safety. Those sacrifices, however, have been met with silence from the gods above. We are not more secure today than we were 15 years ago, but we are most certainly far less free. The Commission would, if nothing else, help to settle the flames currently fanning the intense discourse over encryption and government surveillance. Then, and only then, can all of us start seriously examining the fundamental issues at play in these debates.
Compromise will be necessary, and while the FBI might not be wholly satisfied with the reality of the constraints imposed upon it by the digital age, its ability to investigate criminal activity must always and forever be weighed against the rights of the American people. In a free and open society, law enforcement’s job was never meant to be easy. And given the vast digital frontier that has been opened by the Internet, there are certainly challenges for them to overcome. But we should not lose sight of the fact that we live in a golden age of surveillance, and law enforcement has never had more access to so much information. How it uses that information, without further snuffing out the dying embers of American civil liberties, is a conversation we all need to have.
Whatever your perspective on this ongoing debate, bear this in mind: Tim Cook, love him or hate him, is the only notable technology industry CEO to have taken so public a stand in opposition to government demands for expanding its authorities in post-9/11 America. That alone should evoke the praise of civil libertarians from across the political spectrum. So while competing perspectives continue debating nuance, let us not lose sight of the forest for the trees in this debate. The moment we do, we will undoubtedly find ourselves lost in a wilderness of weeds with no clear exit.