Once again, the US is in a position where clueless lawmakers are wielding an enormous amount of power. As we've been chronicling for more than two weeks, Apple and the tech companies are embroiled in conflict with the government about encryption and personal privacy. One side knows the good it can do, and the safety and privacy it brings to citizens. The other fears it as a potential weapon, and a scary buzzword. So, as with Aereo and the Supreme Court, once more unto the breach, dear friends, once more.
We penned an editorial
when this iPhone 5c unlock saga began
, contemplating the possibility that the vast majority of governmental officials just had no idea what they were asking. Recent proposals and filings -- one from a Florida politician who wants to bar Apple purchases
by the government because the company is "aiding terrorists," and another
from the San Bernardino County Deputy District Attorney that just outright makes up things that don't exist
in an effort to scare the court -- illustrate the proof of our theory. We covered the entirety of the House Judiciary Committee's hearing on the topic earlier this week
, which started the formal conversation between the FBI, Apple, and the world about whether smartphone users should be allowed strong encryption at all, free of backdoors.
Since the editorial was written, we discovered that the FBI and the San Bernardino investigative squad started out right, and contacted Apple nearly immediately. However, at the same time that they were talking to Apple, the train came off the rails, with San Bernardino and the FBI concluding that an iCloud password change would solve all the problems they had. It didn't, and ended up blocking potential automatic backups of the phone when connected to a trusted Wi-Fi network.
Don't even get us started on the mismanagement of the device from the get-go. With proper enterprise device management, which the county of San Bernardino already uses
, the county could have unlocked the phone on day one, hour one. But yet, somehow, this fact keeps getting skipped in discussions about the issue. Since then, we've also had law enforcement and lawmakers start with the clumsy metaphors to describe the situation, that just make conversation more difficult in the long run.
All the way up to the oval office, and candidates for the office
In the very early hours after the court order, one of the presidential candidates said that he would call for a boycott of Apple products, and that Apple CEO Tim Cook was "looking to do a big number, probably to show how liberal he is" and proclaimed before the cheering masses that "Apple should give up." I assume that presidential candidates have at least a passing familiarity with US citizen's Constitutionally granted freedoms, and the rule of law.
The standing president's press secretary said that it was "not asking Apple to redesign its product or to create a new backdoor to one of their products" and added that it was "simply asking for something that would have an impact on this one device." This was after Apple CEO Tim Cook said what Apple would have to do to get into that oft-referred "just one device." The FBI later admitted that this was simply not so. Thus, once again, a clear lack of awareness and assessment of the situation.
Some people who should know better, are making it worse
Worse yet, the San Bernardino district attorney's office filed a briefing with the court yesterday, ignorantly fearing a "dormant cyber pathogen" was somehow lurking on the secured iPhone 5c -- which is actually an argument for destroying the phone as-is, not unlocking it. The San Bernardino DA's filing is irresponsible and downright idiotic. If there was ever a discussion that required a calm and rational discussion, as the FBI director has said himself, the fine line between security and privacy is one of them.
The Congressional hearing, even with its usual windbaggery and the occasional grandstanding, was a good start on a considered conversation where facts and logic have a chance of winning the day. The DA's filing, in all of its ignorant glory, vigorously waves the flag in an attempt to stir up public sentiment, at the expense of common sense and the truth.
Compounding the problem, and ratcheting up the hyperbole, one of the lawmakers at that very "Balancing Americans' Security And Privacy" hearing, David Jolly (R-FL), is filing a bill that will "restrict taxpayer funding for Apple at a time when the California tech giant refuses to cooperate with law enforcement in an investigation of terrorism on American soil" by preventing federal procurement from buying Apple products. Jolly is allowed to propose what he wants, for whatever reasons he wants, but perhaps he should check some facts first -- some of which were presented at the hearing which he attended.
Perhaps also, he should avail himself of the fact that as ordered by the judge
, Apple has legal remedies to decline to unlock the phone, and they have taken such steps. Maybe, Jolly should consider that Apple has given every scrap of data that they have on the case, as quickly as a handful of hours after the request, before he inflames the discussion by saying that Apple "refuses to cooperate in a terror investigation." Possibly, he should engage in the two-way conversation that he is supposed to be part of as part of the House Judicial Committee, and stop stomping his feet like a petulant child with such legislation.
In unveiling his bill, Jolly poses questions such as "who did the terrorist talk to? Who did he message with? Did he go to a safe house? Is there information on the phone that might prevent a future attack on U.S. soil?" Most of Jolly's concerns have already been addressed through other means, gleaned from the wireless carriers, gathered from the data Apple has already provided, or are utter common sense.
We've been down this road again, and again, and again...
I regret to inform you, dear reader, that given all this, our fears here at MacNN
are completely grounded in reality. I will give lawmakers credit, like I once did for Supreme Court justices
. I will assume that a certain level of logical thinking and common sense is required to get elected in the first place. However, given how the US presidential races are going, perhaps this is not the case.
So, despite some evidence to the contrary, I'll assume a certain level of intelligence in our elected officials, so they do have the the means to examine the entire matter beyond buzzwords and relentless, blinding patriotic jingoism. Whether or not they choose to is another matter. Given our assumptions about elected officials and law enforcement, once again, for the most part, it must be an utter lack of desire to really learn about the issues at stake for some in positions in Washington DC and in law enforcement.
In this case, if Apple's security is weakened, there are literally hundreds of other alternatives by developers that US law enforcement can't bully to generate a back door -- a fact that's getting ignored, or not learned in the first place. So, in serving the "greater good," an anti-encryption law mandating that companies develop break-in tools that don't exist doesn't serve anybody, and will just up the stakes and force miscreants to other platforms. For some reason, this is an incomprehensible fact to some of the lawmakers, who seem to think that an Apple key will magically unlock all of these other secure communications services that fall outside the realm of US law enforcement, and government-mandated unlock tools.
One train of thought is that the government is picking its battles with this court order, and has picked this particular one to loosen public opinion on privacy and security. I don't think that's the case, at least, I don't think that yet. Never assume malice, when ignorance or incompetence adequately explains the situation -- I'm hoping its just ignorance.
In the years to come, do we fear terrorist acts, or poorly-drafted laws?
My prime concern, after hitting nearly 100 hours researching the facts and writing about this whole matter, remains that a passed law will be crafted by individuals who don't have enough knowledge, or even the inclination to research, matters so intertwined with freedom, privacy, and technology.
As a child, at some point, we're supposed to learn that we aren't the center of the universe. Shortly after that, we figure out that we are part of a larger whole. Theoretically, after that, we learn that there are times where the greater good needs to be served at the expense of some -- the debate between "security and security," as defined in the Tuesday hearing, is one of those situations. Yes, I acknowledge that there will be times where people are hurt physically or financially at the expense of freedom -- it's always been that way! Yes, there will be criminal investigations that will go uncompleted if, as put forth in the hearing on Tuesday, law enforcement doesn't step up efforts to forensically deal with technology -- but the San Bernardino investigation isn't an uncompleted investigation regardless of what the PR spinmeisters say.
Now comes the point where you ask me, that if it was me, would I want the phone unlocked, no matter the cost? Would I be the one who'd sacrifice for the greater good? If you're a frequent reader of the site, you likely know that I am a veteran of the US armed forces through the entire 1990s, so yes, I'd sacrifice for the greater good. If my family was murdered, and bafflingly there was an utter lack of forensic information, with the information relevant to the case locked inside a phone for some reason, I'd still be the guy writing the courts in favor of Apple, or Amazon, or Google, or Samsung, or any number of device manufacturers saying that forcing whatever manufacturer to make this phone break-in tool is contrary to what this country stands for, and should never, ever be allowed.
My point of view isn't because I'm conservative or liberal. It's not because I bleed six colors, or swear fealty to Google, or whatever the tech flavor of the month is. I'm not even delving into the legal minutiae about Constitutional prohibitions to what Apple is being asked to do. My point of view is because I'm a patriotic American, and I'm tired of the back-slide of liberty and privacy in the interest of some mythical security benchmark that we will never reach.
-- Mike Wuerthele