Obama administration, FBI must act to restore US government's credibility in Apple's encryption deb

Posted:
in General Discussion edited February 2016
Actions by the leadership of the Federal Bureau of Investigation over the past month related to the San Bernardino encryption issue demonstrate a shocking level of dishonest and callous disregard for the nation's core principles of democracy. FBI director James B. Comey should issue a formal apology or resign his post, AppleInsider's Daniel Eran Dilger argues.


Steve Jobs once took on Big Blue, now his successor takes on big government. Photo illustration by AppleInsider reader Jeremy Wallace.


The role of the FBI --?policing and solving a spectrum of federal crimes involving serial killers, terrorists, gangs that exploit children, government corruption and civil rights violations -- is far too important to be besmirched by a manifestly dishonest smear campaign against Apple, created to spook and fool the public into accepting the creation of dangerous new legal powers without any respect for the role of elected representatives.
FBI director James Comey has a vast public record of desperately wanting to break encryption.
It is now clear that virtually every material statement made by the FBI about the encryption issue was flat-out false. While there is some controversy involving differences of opinion on the proper role and reach of government, the FBI has an obligation to be honest and genuine in its public communications, and in this case it has been everything but.

The FBI must not misrepresent its true intent



Last week, Comey issued a press release that began with "the San Bernardino litigation isn't about trying to set a precedent or send any kind of message."

It also characterized the legal issue in stating "the relief we seek is limited and its value increasingly obsolete because the technology continues to evolve." It described the FBI's demand that Apple develop for it a new version of iOS that disables key security features in the words, "we simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That's it.

"We don't want to break anyone's encryption or set a master key loose on the land," he added. He just repeated those same comments earlier today.

However, Comey has a vast public record of desperately wanting to break encryption. That comes on top of the obvious reality that of course police always want every avenue available to track down criminals and stop or solve crimes.




End-to-end encryption of communications and of stored data is a clear and obvious barrier for law enforcement doing their jobs, just as it is an impediment to totalitarian governments trying to track down dissidents or hackers trying to steal individuals' identities, firms' trade secrets, or commit all sorts of fraud.

Along with encryption, law enforcement is also stymied by criminals bearing arms, refusing to testify against themselves, or simply committing crimes in the dark without arousing any probable cause that might justify a search warrant to allow police to enter their home to investigate. The U.S. Constitution erects a number of limits on what the government can do, many of which directly make the jobs of law enforcement more difficult.

However, Comey knows a precedent-setting back door that effectively neutralizes iOS encryption is not a popular idea among Americans. So instead of lobbying for it in Congress, he's waging a populist campaign that disingenuously claims to only need the opposite of what he's actually after.

The Obama White House and the Department of Justice are also being disingenuous and even dishonest as accomplices to this charade.

It's not just misleading about the true intent. Also at issue is the fact that all three are working to shove through a legal demand that "actually harms American safety and security," as observed by the former head of both the Central Intelligence Agency and the National Security Agency.

Comey testified to Senators that he wants to stop encryption



As he testified to the Senate Judiciary Committee last July, Comey has a particular problem with encryption because it has, as he testified, "eroded our ability to obtain electronic information and evidence pursuant to a court order or warrant." He referred to this problem as "Going Dark."

In his testimony, Comey acknowledged that "American citizens care deeply about privacy, and rightly so," and stated that "we have always respected the fundamental right of people to engage in private communications," adding, "citizens have the right to communicate with one another in private without unauthorized government surveillance--not simply because the Constitution demands it, but because the free flow of information is vital to a thriving democracy."

After those platitudes, Comey got real. He noted the arrival of a "new scale" of "mainstream products and services designed in a way that gives users sole control over access to their data. As a result, law enforcement is sometimes unable to recover the content of electronic communications from the technology provider even in response to a court order or duly-authorized warrant issued by a federal judge."

FBI director James Comey
FBI director James Comey.


Comey presented an example of a truck driver who was convicted of kidnapping and rape. He had captured his own crimes on video on his smartphone, and those videos were presented as evidence at trial.

"In a world where users have sole control over access to their devices and communications, and so can easily block all lawfully authorized access to their data, the jury would not have been able to consider that evidence, unless the truck driver, against his own interest, provided the data," Comey announced.

Comey then stated, "we would like to emphasize that the Going Dark problem is, at base, one of technological choices and capability.

"We are not asking to expand the government's surveillance authority, but rather we are asking to ensure that we can continue to obtain electronic information and evidence pursuant to the legal authority that Congress has provided to us to keep America safe."

He described at length the "demanding" nature of obtaining a wiretap warrant, then complained that "the evolution and operation of technology today has led to recent trends that threaten this time-honored approach."

Comey tried to pass a law against encryption, but failed



Further calling into question the claim that "we don't want to break anyone's encryption," Comey's FBI worked with the White House on a legal strategy designed to force Apple to build a backdoor into iOS -- right up until last October, when the Obama administration apparently decided that there would be too much political opposition to achieve that.

In November, Josh Gerstein reported for Politico that "the White House decided last month not to press for legislation that would force American companies like Apple to provide a mechanism for authorities to de-crypt an encrypted phone."

Gerstein added, "Much of the recent concern appears to have been spurred by the latest generation of Apple phones, where encryption is on by default and the company claims to have no ability to crack the encryption."

He cited Comey as stating, "The position of the administration is it didn't make sense to seek legislation now. There was more work to do before we figured out what was the way forward."

After failing to mandate an iOS backdoor, FBI was looking for "the way forward"



On December 2, the San Bernardino shooting resulted in 16 deaths and 24 injuries -- the largest since the Sandy Hook shootings killed 26 people three years prior. Investigators concluded the assailants were inspired by the radical Islamic State, making the incident a political hotbed for national security implications.

Data on the killers' phones that might have helped police was irretrievable, but not because of encryption. It was because the phones had intentionally been physically destroyed by the killers. However, a work phone also possessed by one of the killers was found. It was encrypted.




Apple worked with the FBI to advise the police on ways that the discovered phone could have data retrieved from it, but the FBI admitted that it instead instructed San Bernardino County (the owner of the device) to reset the phone's Apple ID, which had the effect of making it impossible to trigger a backup of additional data that might be retrievable.

This appeared to be incompetence. However, the FBI later issued a bizarre statement that suggested this was done with an understanding of the consequences, stating, "Even if the password had not been changed and Apple could have turned on the auto-backup and loaded it to the cloud, there might be information on the phone that would not be accessible without Apple's assistance as required by the All Writs Act order, since the iCloud backup does not contain everything on an iPhone."

Two months after the phone was recovered, the FBI launched the issue into the public sphere by that demand for "assistance as required by the All Writs Act order," a shaky legal theory based on a slavery-era law from 1789 that the FBI interpreted as a catch-all for demanding, via the courts, anything "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

It's not surprising that the FBI wants a backdoor for iOS. However, it is dishonest for its director --?and the White House itself -- to insist that this issue needs help from Apple that is "not a backdoor" and is limited to "this one case," when both have been working for months, looking for "a way forward" on how to bring an end to iOS encryption.

Why Tim Cook is recommending Congress address this issue



The White House, via the Department of Justice, is suddenly pressing for emergency action. Is this because there are fresh leads potentially locked on the employer's iPhone 5c two months after shootings occurred? Or because they know they may not get another opportunity to wrap up their demands for an iOS backdoor under the veil of terrorism?

The Obama administration, the DOJ and the FBI also know --?because they came to that conclusion in October -- that elected members of the Senate and House of Representatives are not likely to be sympathetic to a demand by the police for Apple to deliver a back door into the device being used by the majority of Americans. As Comey testified, "American citizens care deeply about privacy."




The FBI didn't just stumble upon the All Writs Act over the last month, however. A filing by Apple unsealed on Tuesday showed that the federal government has previously pursued nine other cases--going right back into last October, the same month that the FBI and the White House gave up on the possibility of getting Congress to force Apple to build a backdoor into its products for the convenience of police.

Even Michael Hayden, a former chief of both the CIA and the NSA --?who served as the NSA's director as it conducted the controversial surveillance program that collected telephone metadata on millions of Americans --?called out Comey as not shooting straight about his real intent.

"In general I oppose the government's effort, personified by FBI Director Jim Comey," Hayden said in an interview. "Jim would like a back door available to American law enforcement in all devices globally. And, frankly, I think on balance that actually harms American safety and security, even though it might make Jim's job a bit easier in some specific circumstances."

Hayden added, "when you step back and look at the whole question of American security and safety writ large, we are a safer, more secure nation without back doors." If there's a back door, he said, "a lot of other people would take advantage of it."

[At the same time, Hayden also prefaced his concerns with, "In this specific case, I'm trending toward the government," showing how easy it is--even for those who are aware of the consequences--to relax their principles when short term appearances are weighed as more important than true safety and security.]

Not about unlocking



Comey's FBI and the Obama administration are gaining some cover from the media as well, which keeps suggesting that the issue in question is whether or not "Apple should help the police to unlock a terrorist phone."

This is also absolutely untrue. Apple isn't being asked to unlock a device.

The FBI knows Apple can't unlock it, because there is no master key that exists anywhere. What it is demanding is new software that would bypass iOS's existing security features to allow the FBI itself to guess the passcode for as long as it needed to access the device.

Apple Chief Executive Tim Cook called this new software a "cancer," suggesting that once unleashed, it would be impossible to control. And of course, if the U.S. federal government already has nine other requests in the queue for a security bypassing back door to get past encryption, setting a new precedent for the "Mother of All Back Doors" means that there will be a steady stream of new demands.

And if the U.S. can achieve its goals via a court order, clearly any other country Apple does business in can also demand access to the same capabilities, without even needing to establish any sort of democratically-originated legal basis in law.

That alone is reason enough for Comey to immediately dial down the FBI's rhetoric and withdraw the demands for a back door from Apple, made without the consultation of Congress having the opportunity to fully debate the issues involved without the fervent, rushed emotionalism this public smear campaign is attempting to leverage.
anantksundaramrazorpitceek74punkndrubliclostkiwipalomineeideardbrakkenlolliver47gsls
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Comments

  • Reply 1 of 126
    Brilliant editorial. I agree 100%.

    Thank you, DED.
    icoco3ceek74dtidmoreEl2016fotoformatlostkiwicalihlee1169jmey267jkichline
  • Reply 2 of 126
    icoco3icoco3 Posts: 1,459member
    "Obama administration, FBI must act to restore US government's credibility..."

    How does one restore what one never had. wink

    P.S Great article.

    153
    155
    edited February 2016 ceek74micurmudgeonquadra 610lostkiwicalinousernemo227eideardpmzlolliver
  • Reply 3 of 126
    apple ][apple ][ Posts: 8,699member
    Those clowns can not be trusted, and the integrity of Apple's devices and the security of their customers takes precedence over dishonest and foolish demands from incompetent govt agencies.
    ceek74anantksundaramOmahalostkiwiawilliams87nouserlolliverjony0badmonkMDot
  • Reply 4 of 126
    msanttimsantti Posts: 1,377member
    Dilger is Apples #1 PR guy.
    ceek74latifbpbadmonk
  • Reply 5 of 126
    tmaytmay Posts: 3,962member
    msantti said:
    Dilger is Apples #1 PR guy.
    And?
    monstrosityawilliams87icoco3bestkeptsecretjony0
  • Reply 6 of 126
    SoliSoli Posts: 9,280member
    That image is great.
    calibadmonk
  • Reply 7 of 126
    jfc1138jfc1138 Posts: 3,090member
    They're simply terrified over what will become the FIRST ruling in this area: that of Judge Orenstein on the Jun Feng case in Brooklyn where, Apple was going to cooperate and it was The Judge, that stepped in and asked for Apple's input as to why. Reportedly he's a long time skeptic over government intrusion and views the All Writs Act of 1789 as a lot less applicable to smartphones than the government would like. The telecommunications link being that of an old landline case where what was accessed were standard telephone records IIRC.


    lostkiwisteveh
  • Reply 8 of 126
    cpsrocpsro Posts: 2,493member
    Forget the FBI's "true intent."  Studies have shown that people who have "true intentions" of keeping information confidential nevertheless leak it. Let's consider ultimate ramifications instead, regardless of what the myopic FBI even thinks. This is the toughest case Comey has ever faced because there are no laws to help.

    The government needs to get off its collective ass and address the privacy holes in the law that Silicon Valley has thus far been running roughshod through.
    edited February 2016
  • Reply 9 of 126
    Kudos to Tim Cook for affirming Apple's core principles.  Market share is far too important to risk losing for a few dozen dead Americans.
    Ricardoh
  • Reply 10 of 126
    The FBI needs to restore the credibility of itself and the Federal Government and indict Hillary Clinton.
    hubeeenouser
  • Reply 11 of 126
    The FBI director must be replaced. He lacks understanding of the internet, technology, cyber criminals. He has shown to be woefully in equipped to fight crime in 2016 and beyond. The director is at a loss as to what tools, systems and data strategies he needs as the premier law enforcement agency of the world. By taking the Apple I-phone case to court is like the cops dialing 911 for help.
    lostkiwicalipalominenouserbobschlobjony0badmonk
  • Reply 12 of 126
    Riversong said:
    Why would anyone expect an "Apple insider" to say anything different.

    As a lifelong opponent of government overreach, I've been following this debate and found Apple's statements to be disingenuous and self-serving, NOT those of the FBI.
    Then you are not really a lifelong opponent of government overreach are you?

    chabigOmahalostkiwistskcalimwhitehlee1169awilliams87fracdundeebomber
  • Reply 13 of 126
    Yeah, calling the FBI director and, by extension, the attorney general, liars and demanding apologies is real mature. The idea that Apple is drawing a line in the sand to protect the contents of a murderer's phone is perverse. This is clearly an attempt by Apple to burnish their cred with those pervaded by knee-jerk anti-government sentiment. Maybe they can sell a few extra I-phones to the Bundys.

  • Reply 14 of 126
    tmaytmay Posts: 3,962member
    Riversong said:
    Why would anyone expect an "Apple insider" to say anything different.

    As a lifelong opponent of government overreach, I've been following this debate and found Apple's statements to be disingenuous and self-serving, NOT those of the FBI.
    I'm guessing that your idea, maybe even your definition, of government overreach and mine are different. 

    Also, I'd probably not lead with a purity statement in my first post; it never ends well.
    lostkiwistskcalimwhitehlee1169fracicoco3palominenouserwetlander
  • Reply 15 of 126
    The FBI is making a clear attempt to end run the 4th Amendment. ANY Government organically seeks more power. Our Constitution is meant as a check to that power.
    Apple Budlostkiwistskcaliai46icoco3palominenouserwetlanderjony0
  • Reply 16 of 126
    Technology moves fast, elected officials in this country (some believe in creationism and what it taught in schools as fact) lag behind by years. 
    We elect people to Congress to be better versions of ourselves and expect them to understand or be willing to research complex social, economic and political problems. 

    As for "opponent of government overreach" when I see this vague cliche used I can only assume it means "I have got mine and there is no way I want my tax $ to go towards helping other and although I actually take of advantage of government assistance (Social Security, unemployment insurance, etc...) yet never think of it that way and are under the illusion that I paid for those things. 

    hlee1169ai46
  • Reply 17 of 126

    apple ][ said:
    Those clowns can not be trusted, and the integrity of Apple's devices and the security of their customers takes precedence over dishonest and foolish demands from incompetent govt agencies.
    If (god forbid) President Trump told Apple to cave would you still have his picture next to your name?
    calihlee1169badmonk
  • Reply 18 of 126
    Riversong said:
    Why would anyone expect an "Apple insider" to say anything different.

    As a lifelong opponent of government overreach, I've been following this debate and found Apple's statements to be disingenuous and self-serving, NOT those of the FBI.
    Well, with warriors like you against government overreach we must be losing the war, The government and the FBI in particular cannot be trusted beyond a certain point. All you have to do is look up the COINTELPRO program of the 1950's and 60's where the FBI turned against the civilian population using harrassment by police, the IRS, hate mongering, psychological warfare - virtually anything at their disposal to wreck the lives of people like MLK who dared challenge the powers that be. Secondly, what makes you think that even if they caught something on this fishing trip, they would actually be competent enough to use it intelligently to preempt some sort of criminality. They had information that could have prevented 9/11, about people training to fly airplanes but not take of or land, they had information about the Tsarnev brothers of the Boston Marathon bombing and did nothing with it. So you're backing this fishing attempt, which is what Comey is actually framing it as, as he has stated they don't know if they'll get anything useful of the phone or not. It's obvious to many that this is about setting a precedent to make Apple and any other high tech vendor circumvent encryption at the FBI's and apparently any other governmental agency's beck and call. I think based on the historical narrative no good can come of allowing this "backdoor" to be opened. And it's not just a software backdoor, its a legal one as well.
    El2016Apple Budstskmwhitecalihlee1169ewtheckmanbrucemccincymacnouser
  • Reply 19 of 126
    No Privacy = No Liberty

    When the director of the FBI explains the phenomenon described in the below link, then I'll allow a permanent colonoscopy of my personal data.


    brakkenpmz
  • Reply 20 of 126
    tmaytmay Posts: 3,962member
    The FBI needs to restore the credibility of itself and the Federal Government and indict Hillary Clinton.
    I'd be all for that, it they indicted everybody else in Congress and the Administration that did something either stupid or illegal; I'm guessing that there aren't actually that many government officials that could meet that stringent test,

    Maybe Comey could investigate himself? I'm sure that would work out well for him.
    hubeeecalibrakken
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