Sabotaging Privacy: The FBI’s Battle Against Encryption

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation.

— Tim Cook, CEO of Apple, February 16, 2016

The world of security and the world of capital can be unfriendly to each other.  The incentive to make money is not necessarily one that works well with law enforcement, if one is to believe the arguments made by such entities as the Federal Bureau of Investigation.  The latter insists on eliminating all risk, while those insisting on privacy as they make money out of it beg to differ.

The encryption debate continues to gather pace over attempts made by the FBI to force Apple to assist its efforts in gaining access to Syed Rizwan Farook’s iPhone 5C.  Farook, along with his wife, was responsible for the deaths of 14 individuals at a holiday party in San Bernardino last year.  It was a battle Apple lost in the US District Court for the Central District of California, with an order that effectively makes the company sabotage the security of its product by building a back door.

The FBI’s argument hinged on an archaic law, that of the All Writs Act of 1789.  It is a statute permitting federal courts to issue writs that mandate third parties to assist in the execution of another court order.  What the FBI has effectively done is make Apple construct a new code to enable access to the device, part of which could only be authenticated by Apple’s own private key.  The result of it is a deactivation of the security features of the device.  “This,” argues Ashley Carman of The Verge, “essentially amounts to the FBI requiring Apple to lie about its security checks”.

This onerous requirement goes beyond the mere instance of, as Susan Hennessey of Brookings explains, “sticking a key in the door and turning it.”  It has all the hallmarks of being unduly burdensome, an engineering feat that goes well and beyond the legal request for information.  This unprecedented use of the All Writs Act is bound to be challenged through the appellate process.

The White House reaction has centred on a narrowing quibble. According to spokesman Josh Earnest, the FBI request did not even amount to the creation of a “back door” so much as an engineering adjustment specific to that phone.  “They are simply asking for something that would impact on this one device.” Naively, the White House sees no consequences ensuing from this order.

Others see this as less significant, in actual fact “a testament,” argues Peter Bright of Ars Technica, “to how good encryption is.”  The iPhone operating system in terms of encryption is not being circumvented. “Rather, [the order is] asking Apple to do the one thing that Apple alone can do: use the iPhone’s built-in method of installing firmware written by Apple.”

Tim Cook of Apple, dubbed by The Economist a “privacy martyr”, issued an irate customer letter in the wake of the ruling, calling “for public discussion, and we want our customers and people around the country to understand what is at stake.”

Cook, in condemning this instance of “overreach by the US government” charts the total dimension of such technologies as the smartphone, effectively a massive data base of one’s private world. “Compromising the security of our personal information can ultimately put our personal safety at risk. That is why encryption has become so important to all of us.”

Google CEO Sundar Pichai is similarly troubled.  “We build secure products to keep your information safe and we give law enforcement access to data based on valid legal orders.” That, he insists, is a different prospect to “requiring companies to enable hacking of customer devices and data.”

Technology giants have proven at stages to be inconsistent on the privacy line.  No less a person than Mark Zuckerberg of Facebook has done wonders to reduce the status of privacy to that of a mistreated rag doll, cast aside as unloved and irrelevant.  Facebook has infamously done its share to undermine the world of privacy while giving the impression that it is all a matter of habit: privacy is dead because we wished it to be.  Post-Snowden, and his tune has changed, if only because it looks bad for business.

The problem here is how the US political classes will respond. Mantras on security sell, even if they suggest nothing about how effective new measures to access private data might be. Presidential contender Donald Trump has already added his misinformed contribution, taking to Apple’s desire to fight the ruling.  “Who do they [Apple] think they are? They have to open it up,” he blustered to Fox News on Wednesday.

Continued losses on the encryption debate will have the effect of turning people away from some technologies while they embrace others.  It will also see the very companies so treasured by the US Chamber of Commerce and various other arms of the US government take a hammering in their profits.  No one, in short, will be trusted, and getting an Apple product will provide more than just food for thought.  Bad business for US companies but a boon for their overseas rivals.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne and can be reached at: bkampmark@gmail.com. Read other articles by Binoy.