In the midst of an election cycle that is hitting new lows for misinformation, petty demagoguery and clown-car silliness, there’s something refreshing about the FBI-Apple fight over cellphone encryption, the pursuit of criminals (in this case possible terrorists) and personal privacy.
Whatever your thinking on the issue, the debate is noteworthy for the volume of serious, informed thinking. Credible, thought-provoking cases are being made for every facet of the controversy.
Minnesota’s standing in the discussion is led, arguably, by Bruce Schneier, the Minneapolis-based, internationally respected author of the Schneier on Security blog, as well as several books on critical security issues. Schneier begged off an interview on the FBI-Apple battle, citing his current workload. But his recent posts more than adequately lay out his thinking.
“Your phone is a very intimate device,” Schneier wrote earlier this week. “It is likely that you use it for private text conversations, and that it’s connected to your bank accounts. Location data reveals where you’ve been, and correlating multiple phones reveal who you associate with. Encryption protects your phone if it’s stolen by criminals. Encryption protects the phones of dissidents around the world if they’re taken by local police. It protects all the data on your phone, and the apps that increasingly control the world around you.”
“Either everyone gets security or no one does,” he continued. “Either everyone gets access or no one does. The current case is about a single iPhone 5c, but the precedent it sets will apply to all smartphones, computers, cars and everything the Internet of Things promises. The danger is that the court’s demands will pave the way to the FBI forcing Apple and others to reduce the security levels of their smart phones and computers, as well as the security of cars, medical devices, homes, and everything else that will soon be computerized. The FBI may be targeting the iPhone of the San Bernardino shooter, but its actions imperil us all.”
Further proof of the heightened level of conversation on this issue, at least on Schneier’s blog, is that even the discussion threads (notorious for their roiling cesspool qualities in most other places) are an educational experience. Like, for example, a discussion of whether the software the FBI is demanding Apple create in the San Bernardino case would have to be turned over to defense attorneys in the event collaborators were indicted.
The past week has seen a daily, almost hourly run of developments, from Bill Gates at first seeming to side with the FBI’s argument, then walking it back.
Meanwhile, most of Silicon Valley appears supportive of Apple and CEO Tim Cook’s defense of customer privacy, a stance the strikes some skeptics as more than a little hypocritical given the way Facebook, Google and other tech companies routinely siphon customers’ private data for resale. In the past few days Cook, searching for a credible way to assist the FBI (and the myriad other agencies lined up to exploit whatever precedent the Bureau can beat out of Apple) has also proposed a commission of a to-be-decided composition and authority to set or at least propose legal standards for cases like this one and all the others like it certain to follow.
Over at Mitchell Hamline Law School, professor Sharon Sandeen is an expert in trade secrets law. She is officially neutral in the FBI-Apple fight, but is well acquainted with the essential arguments in play. While acknowledging the urgency expressed by the FBI in pursuit of possible collaborators with the San Bernardino killers, she counsels that in the context of rapidly evolving technologies like personal cellphone encryption the wisest course generally allows the debate to work its way through the courts.
This particular debate has legal gravity, she said, “Because you have a lot of different interests and facets of law involved. Along with very basic rights of privacy there are serious questions relating to contract law, in particular a company’s representations to its customers, and then a host of constitutional issues as well. It is certainly not straightforward.”
Emphasizing that her expertise is in law and not technology, she says she can appreciate Apple’s concerns about precedent — opening a door to constant demands from American and foreign agencies demanding access to customer information — but notes “a troublesome inconsistency” among tech companies like Apple, its vast universe of app designers and consumers indignant over the government, i.e. the FBI, wanting a look at their most private information.
“Sometimes there may be a disclosure page,” said Sandeen. “But often it’s a case where the consumer either doesn’t know what he or she is agreeing to, or if there is a full description they don’t read it. Moreover, none of [the apps] come with an ‘opt out’ option. You either agree to the terms or you don’t get the app.”
She mentions her own recent experience with something as mundane as the app for Minnesota Lynx tickets, which would have allowed access to her email list.
There is, she says, “A lot of irony here. We have companies whose business model is about collecting vast amounts of information from us, about us, and then using, reusing, repackaging and selling that information to anyone they choose, with little to no awareness on our part.”
Furthermore, by simply agreeing to the terms of service we are in effect waiving our right to privacy. Sandeen notes that following lawsuits by the FTC and consumers, many if not most tech companies have gotten out of the business of promising to protect customer privacy.
On the question of a commission/high council on encryption and privacy amid the “war on terror” Sandeen says she has an open mind. She points to the way decades ago Congress (back when it functioned) created the National Commission on New Technological Uses of Copyrighted Works (CONTU) to provide guidance on copyright issues. Likewise, back in the early Reagan years, Congress created the United States Court of Appeals for the Federal Circuit to take a particular focus on patent laws.
Her point: While the solution to the FBI-Apple standoff may not be imminent, there are precedents for dealing with complex, rapidly developing technologies.