ALBUQUERQUE, N.M. — Most of us have been thinking about Apple’s dispute with the FBI over encryption of smart phones all wrong, according to some computer scientists I interviewed Tuesday. If we understood what was at stake we’d probably agree that Apple is doing the right thing, they said.
Other people I spoke with think that improved personal safety is worth some risk to personal privacy.
The FBI asked for Apple’s help accessing data on an iPhone owned by one of the terrorists who killed 14 people at a holiday gathering in San Bernardino, Calif., last December. The FBI’s problem was that after enough failed attempts to enter a pass code into the phone, all of the data on it would be automatically erased. At a minimum, the FBI wanted a way to protect the data from erasure while it entered randomly selected passwords into the phone.
Apple refused to help, so the FBI went to court trying to compel Apple to help under the All Writs Act. In the meantime, the FBI hired an unidentified person or persons who accessed the data. FBI Director James Comey implied in a speech the agency paid more than $1 million for the service.
Some observers say this is rather like the FBI seeking a warrant to require a bank to open a safe believed to contain evidence of a crime. That isn’t at all what’s going on, said University of New Mexico computer science students Jessica Jones, Ben Mixon-Baca and David Ringo and one of their professors, Patrick Gage Kelley, who teaches a class on technology and ethics.
Apple designed a safe with 1,000-mile-thick walls and deliberately did not make a key with which to open it, Ringo said.
Indeed, Apple touted that feature in its marketing materials in 2014 when it said “it’s not technically feasible for us to respond to government warrants.”
The FBI is asking Apple to create a key. That key, once invented, won’t just open the one safe the FBI is interested in opening. It would open most safes that Apple makes.
The legal question, said Albuquerque attorney and former federal prosecutor Mark Baker, is whether the All Writs Act, which was signed into law by President George Washington, gives the government enough authority to require Apple to invent a key. A 1977 U.S. Supreme Court opinion said that under the act the government can compel parties that are not directly involved in a criminal proceeding to provide technical assistance.
Smart phones like the iPhone are small computers. Depending on the user, they can store everything of importance, from bank account numbers to confidential business documents.
It is simply naive to think that a key once invented will not find its way into the wrong hands, Jones said. Even if one trusted the FBI to use the key judiciously, protect it zealously and take only relevant information out of a wide-open safe containing everything imaginable, you couldn’t trust Iran or China to do the same once they got their hands on it, which they undoubtedly would, she said.
How will the government’s new power be constrained? they asked. “Once you’ve opened the back door, how do you secure it?” Mixon-Baca said.
Comey has asked that Apple consider the victims and the FBI’s duty to investigate.
“Should we open the phones or take away the guns?” Kelley said. “Those people weren’t killed by phones.”
Not all technologists agree.
Bob Reed of the Bear Canyon Apple User Group said he respects Apple’s “stance up to a point. We declared war on terrorism years ago in the Bush administration. No one has rescinded that.” Rules change in wartime. “The net is not a friendly place. You pay for your freedom.”
Like Kelley, Barbara Hannan, a UNM philosophy professor, has been using the Apple case as a teaching tool. The question being asked in her philosophy of law class is one proposed by the late Ronald Dworkin: What power would you entrust to people who disagree with you?
Freedoms are always constrained, Hannan said in an email exchange. Speech that libels, endangers public safety or national security is not protected by the First Amendment. “There is more and more sentiment among the public and among intellectuals that some legal proscription of offensive speech, such as hate speech that is racist or sexist, is morally justified, since it diminishes the equality of citizens of the democracy,” she said.
Hannan applauds Dworkin’s thought, but “in these times of terrorism I personally am willing to sacrifice some privacy for security, and I think most reasonable people agree with me.”
Baker thought it was odd that Apple would use the San Bernardino case to challenge the All Writs Act and risk looking as if it were protecting terrorists.
Now that the phone is unlocked, Apple could face some consumer blow back no matter what it does, Baker said. If Apple doesn’t try to close the open door in future phones, it can no longer claim they are warrant-proof. If it does close the door, it could be accused of actively helping criminals elude the FBI.