The FBI, Apple, and why privacy matters

Privacy, NakedLaw, News, Opinion, Rights

After former NSA contractor Edward Snowden notoriously leaked a trove of secret documents detailing how the U.S. government was spying on American citizens, the pendulum of public opinion had arguably swung in the direction of privacy advocates. But with the rise of ISIS and the 2015 and 2016 terrorist attacks in, respectively, Paris and Brussels, as well as the December 2015 San Bernardino massacre closer to home, that swing may have started to reverse.

The FBI requested that Apple develop a backdoor program to access encrypted data on the iPhone of one of the shooters. Apple refused, and the matter landed in federal court, which initially ruled in favor of the FBI. But while Apple was appealing, the FBI announced that they had independently hacked into the shooter’s iPhone and therefore dropped the court action.

So while the immediate dispute between Apple and the FBI is resolved, it did nothing to settle the underlying issues of security versus privacy.

The “crypto” wars

The battle over encryption—especially the ability of mainstream tech companies to protect the privacy of customers using popular consumer products—goes back more than two decades, to a period known as the “crypto wars.”

In the early 1990s, privacy advocates fought and won a battle with the Clinton administration over a device called the Clipper chip. If legislation mandating this technology had passed, it would have added a backdoor encryption chip into every phone and communications device manufactured. With it, the government could have eavesdropped on any phone call it wished.

As more communication has become digitized in recent years, encryption’s already important role in ensuring privacy has only increased. But it’s not foolproof.

Fast-forward to the present day and the government is finally acknowledging that unbreakable encryption is here to stay in what The Intercept calls the “Post-Crypto phase of the Crypto Wars.” Rather than trying to hack encrypted products, the government is now looking for new ways to circumvent encryption.

A (not so) simple tradeoff: privacy for security

The problem is that once the technology for a backdoor solution exists—as it apparently now does for the iPhone—it can be used to unlock any iPhone the government deems necessary.

In fact, there is plenty of evidence that the encryption backdoor will be used beyond this case. The FBI had issued at least a dozen similar requests asking Apple to access encrypted data on iPhones, and the New York City police are in possession of at least 205 locked iPhones that they’d like decrypted.

What made the San Bernardino case ideal for the intelligence community’s cause is the terrorism element; even though the shooter won’t be prosecuted (since he is already dead) and almost certainly wasn’t involved with a wider terror cell, the terrorist label provided the needed justification. The public seemed to agree: at the height of the controversy, a Pew Research Center poll found that 51 percent of Americans thought Apple “Should unlock the iPhone to assist the ongoing FBI investigation,” while 38 percent said Apple should not.

Why privacy matters

A common claim from law enforcement—and sometimes the media—is that most people “just don’t seem to care about privacy.” They point to those who don’t check boxes to block tracking cookies or fail to install encryption to protect their emails. If we’re all handing over reams of personal information to Facebook, Google, and Amazon through the front door, does it really make a difference if intelligence agencies are harvesting data through the backdoor?

But if you’re one of the people who gave your credit card number to Target, had an Ashley Madison account, or even provided identifying information to the IRS when you pay taxes, then you should probably care about how encryption backdoors weaken protection from hackers. And if you’re a Muslim or a member of a labor or left-wing group, you should definitely be concerned about the surveillance activities of the US government.

Even if you think you have “nothing to hide,” privacy is an essential precondition for any group or individual hoping to exercise the right to free speech and expression.