Encryption Wars: Apple vs. FBI Didn’t Start With San Bernardino

In the wake of the San Bernardino shooting, a headline-grabbing war broke out between the FBI and Apple, which refuses to modify the software on slain jihadi Syed Farook’s iPhone so the FBI can examine his data.  A lengthy article at Bloomberg Business argues this was really more like a cold war going hot, because the FBI has been at odds with Apple since the latest version of its operating system was released.

The Apple battle should also be understood in the larger context of the Encryption Wars, as various platforms now offer consumers access to unbreakable encryption.  For these providers, it’s a matter of honor to avoid creating the kind of “back-door” access government agencies desire — the companies make a point of assuring consumers that not even the company’s own programmers can crack their communications or stored data.

According to the Bloomberg Business account, tensions flared between the FBI and Apple the moment the Bureau got a look at iOS 8:

On June 2, 2014, Apple Inc. Chief Executive Officer Tim Cook took the stage at the company’s Worldwide Developers Conference in San Francisco to tout the iPhone’s latest mobile-operating system, iOS 8. With more than 6,000 developers and technology enthusiasts cheering them on, Cook and other executives showed off new text messaging features, a health-tracking tool and an updated photo app.

Not once during the two-hour presentation did Cook & Co. mention what would prove to be the most consequential software development of all. Tucked inside the new OS was a dramatic change to how Apple encrypts data on iPhones. The new system made it impossible for government investigators—and even Apple itself—to pull information from a device without a passcode.

Following the event, Apple gave the Federal Bureau of Investigation early access to iOS 8 so it could study how the new system would change evidence-gathering techniques, according to people familiar with the software’s development. The agency quickly realized Apple had closed an important access point used for years by agents to collect information about criminal suspects. Many in the FBI were stunned. Suddenly, photos, text messages, notes and dozens of other sources of information stored on phones were off-limits.

In fact, rumbles of the conflict could be heard as far back as 2010, with the Bloomberg piece later describing how Apple’s launch of encrypted video and text messaging made law enforcement a bit nervous.  Also, it is noted that the first shot in the Apple-FBI war was actually a little-noticed courtroom dispute over a drug dealer’s encrypted phone in New York, a few months before the San Bernardino shooting made the encryption dispute into front-page news.

Apple partisans argue the government was looking for a big case it could use as a crowbar against the most prominent provider of unbreakable encryption.  Some say the Farook iPhone’s importance as a precedent exceeds the value of whatever data it might contain.

“Law enforcement officials had long warned that stronger encryption would eventually shut out criminal investigators,” Bloomberg notes.  “Now they had a case with national security implications they could use to press their argument that Apple had gone too far with iOS 8.”

FBI Director James Comey used almost exactly those words to denounce Apple’s encryption features as a mere “marketing pitch” that would have “very serious consequences for law enforcement and national security agencies at all levels.”  He compared iOS 8 to giving criminals an unbreakable safe where they could stash evidence.

The case is likely to end up before Congress and/or the Supreme Court, where it could “set a legal precedent requiring Apple and other technology companies to provide federal investigators with tools to bypass security features,” according to Bloomberg’s analysis… not to mention setting a precedent that authoritarian regimes like China will follow.

It’s worth noting such regimes are already fairly successful at bullying tech companies into surveillance and censorship concessions, by threatening to boot them out of lucrative markets if they refuse.  However, there are serious concerns that if the FBI prevails against Apple, oppressive governments will follow suit, and begin cracking into secure channels and devices employed by political dissidents.

Some of Apple’s defenders argue that the government should seek a proper legislative solution to the encryption impasse, rather than trying to bully Apple into compliance, or twist its arm with court decisions.  It’s rather quaint in this age of rule by executive decree, and courts functioning as super-legislatures that rewrite laws on the fly, to suggest Congress ought to debate and pass laws in accordance with the Constitution to resolve a crisis created by evolving technology.

The Bloomberg piece discusses the bumpy road such legislative efforts have traveled over the past six years, including a pivotal moment in 2013 when the Edward Snowden scandal seems to have permanently frightened both Congress and the Administration away from formally revising privacy and communications law.

It is also suggested that Apple CEO Tim Cook’s status as a top Obama donor and friend of this White House have protected him from legislative initiatives… leaving the law-enforcement and intel communities to seethe in frustration.  However, the President is now more-or-less officially on the FBI’s side in the Farook dispute, criticizing Apple as a privacy “absolutist.”

If the FBI was surprised at how thoroughly iOS 8 would shield the data of suspects from the eyes of investigators, Apple was apparently equally surprised that the FBI stopped working with them behind the scenes and dragged the dispute into the headlines after San Bernardino.

It’s a little dismaying that everyone was so surprised by this, because the basic conflict is impossible to reconcile through negotiation.  Criticizing Apple as “absolutist,” the way Obama does, is disingenuous because the other side of the argument is also absolute: either consumers will have access to unbreakable encryption, or they will not.

As former White House privacy official Timothy Edgar perfectly summarized the core issue for Bloomberg: “Lawyers think privacy is you can’t listen to my conversation without a warrant; technologists think privacy is you can’t listen to my conversation, period.  It’s hard to reconcile those two points of view.”

Barack Obama is a major reason so many people desire absolute protection from government surveillance; after the scandals of his Administration, US citizens have good reason to suspect any carefully-monitored, legally limited surveillance power granted to the government may be politicized and turned against them, or abused through sheer incompetence.  It’s likewise difficult to feel confident that magic back-door keys would remain forever in the hands of duly authorized US government agents.

Apple really is digging in its heels to protect encryption, and not just at the boardroom level.  The New York Times notes that individual Apple engineers are talking about quitting their jobs, or taking other civil-disobedience measures, if a court orders them to rewrite the iPhone software as the FBI desires.  Not only are they opposed to creating back doors in their encryption systems, they’re also offended by the legal principle of the government “conscripting” their labor to create the new software.

“It’s an independent culture and a rebellious one,” said venture capitalist and Apple veteran Jean-Louis Gassee of his old colleagues.  “If the government tries to compel testimony or action from these engineers, good luck with that.”

The NYT article suggests defiant Apple engineers would be quickly snapped up by other employers if they quit their jobs, not only because their skills are in high demand, but because the tech industry would be eager to facilitate civil disobedience against a court order to create what Apple has taken to calling “GovtOS.”

Some of these engineers are thinking ten or twenty years down the road, to a time when the “Internet of Things” has filled our homes with robotic eyes, ears, and maybe even hands the government could commandeer, if Apple loses this pivotal battle in the Encryption Wars.

The UK Guardian relates a dystopian scenario proposed by engineer and privacy policy expert Ashkan Soltani:

The year is 2026. You get in your new Tesla for a milk run. You place your fingertip on the door handle, the door unlocks, and the car knows it’s you as you step inside because it read your fingerprint.

The car, on its own, pulls out of the garage while you scroll through live streams broadcast by your friends on whatever app has succeeded Instagram.

The doors lock. The car passes the convenience store and its dairy aisle. Instead, it makes two lefts then a right before pulling up to the local police station. The cops are waiting outside. They got a judge to make Tesla update your car’s self-driving software to lock the doors and deliver you to the local precinct. You looked like a guy caught on surveillance camera and the police had a few questions.

There’s an interesting power dynamic at work here.  The Guardian notes that consumers were willing to surrender a great deal of control over their networked devices to private companies, in exchange for the convenience of having software updates and other content “pushed” automatically to their devices.  They gave up this control, more-or-less cheerfully (with the odd holdout here and there, railing against demon Microsoft for defaulting every setting in Windows to “let us screw around with your computer in the middle of the night whenever we want”), because they thought it was a fair tradeoff for the conveniences offered by the companies… and because they know they retain the ultimate power of turning their backs on companies that displease them, or suing for redress in the courts.

Law enforcement agencies now offer enhanced security by demanding the kind of access, and digital conscription powers, Soltani’s 2026 nightmare scenario envisions… but there is no corresponding level of ultimate control by the individual, no right of refusal.  If anything, our ability to influence the government through even the crude and unsatisfactory mechanism of democracy – which is like a dial-up modem for communicating with power, compared to the high-speed broadband of capitalism – is steadily diminishing.

Measured against these concerns is the simple and easily understandable plight of FBI investigators, staring glumly at Comey’s metaphorical un-crackable safe, and wondering how they’re supposed to gather evidence when every crook and terrorist carries an invincible data vault in his pocket.

These issues deserve proper airing and debate by our elected representatives.  Solving them with quiet backroom deals didn’t work out… and never should have been tried.  Solving them with heavy-handed court decisions could spark a revolution in the tech sector.


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