Writing on September 22 in the Wall Street Journal, Devlin Barret and Danny Yadron reported,
Last week, Apple announced that its new operating system for phones would prevent law enforcement from retrieving data stored on a locked phone, such as photos, videos and contacts. A day later, Google reiterated that the next version of its Android mobile-operating system this fall would make it similarly difficult for police or Google to extract such data from suspects’ phones.
It’s not just a feature — it’s also a marketing pitch. “It’s not technically feasible for us to respond to government warrants for the extraction of this data,” Apple’s website says.
This would not protect all data, however:
Apple acknowledged it could still hand such data over to law enforcement that users back up on the company’s iCloud servers. And police can access some iPhone data without Apple’s help, because phone firms keep call logs and Apple doesn’t control data from third-party apps.
The FBI has not taken this news well, in more ways than one. Amy Schatz reports for re/code,
New encryption technologies on smartphones will make it harder for law enforcement to solve crimes or stop terrorists, Federal Bureau of Investigation director James Comey said Thursday in a speech asking companies including Google and Apple to reverse course.
“The FBI has a sworn duty to keep every American safe from crime and terrorism, and technology has become the tool of choice for some very dangerous people,” Comey said Thursday during a speech at a Washington think tank. Federal and local law enforcement “aren’t always able to access the evidence we need to prosecute crime and prevent terrorism. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so.”
Comey didn’t just ask Apple and Google to reverse their decision to bake tougher encryption technologies into the iPhone and Android operating systems. He also said it’s time to update existing laws to allow for federal wiretapping over a broader set of newer Internet-based technologies.
“Both companies are run by good people, responding to what they perceive is a market demand. But the place they are leading us is one we shouldn’t go to without careful thought and debate,” Comey said.
Comey had a lot to say against this (admittedly limited) encryption from Google and Apple. Schatz goes on to report,
“We are struggling to keep up with changing technology, and to maintain our ability to actually collect the communications we are authorized to intercept,” Comey said. “And if the challenges of real-time interception threaten to leave us in the dark, encryption threatens to lead all of us to a very dark place.”
The move by Apple and Google to build tighter encryption standards into their devices stems from continued frustration about Washington’s inaction to address revelations about mass surveillance by the National Security Agency revealed by former contractor Edward Snowden.
Comey said that Americans are wrong to think that the “government is sweeping up all of our communications” because “that’s not true.”
“Perhaps it’s time to suggest that the post-Snowden pendulum has swung too far in one direction — in a direction of fear and mistrust,” Comey said. “It is time to have open and honest debates about liberty and security.”
Some readers might balk at this last pairing of “liberty and security,” since action in the name of security so often seems, including in this case, to come at the expense of individual liberty.
This is a concern I share, but in the interest of charity, and to prevent the “post-Snowden pendulum” from swinging too far in the other direction, it seems worthwhile to note the pairing of liberty and security or safety in some of our founding documents.
For example, the Constitution of Pennsylvania (1776):
That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.
The preamble even states, “all government ought to be instituted and supported for the security and protection of the community as such.” The Constitution of Vermont (1777) uses exactly the same words in its preamble as well.
These are just two examples of the pairing of liberty and security in founding documents of the United States. So Comey’s concern may, in fact, be in line with the founders of our free societies. That said, even in the best light, isn’t he — for lack of a better expression — doing it wrong?
If his first concern is security, is it wise to publicly say that the FBI is “struggling to keep up with changing technology”? Honestly, whether someone agrees or disagrees that the new encryption methods are a serious threat to national security, isn’t the FBI director’s implication that they are now at the mercy of Google and Apple and may even before now have been failing at their job? Aren’t statements like that just as much, if not more so, a threat to national security?
The right way to do it is — whatever the reality — to pretend to be unphased by these recent announcements, as if whatever Apple and Google can come up with couldn’t possibly be a match for the FBI. Brush the news aside like a pesky insect, unconcerned whether it may be carrying malaria. It’s as bad a gaffe as the president saying we don’t yet have a strategy to counter ISIS three months after the latter had conquered half of Syria and Iraq. It shouldn’t be so hard for a government official to lie! If ever there was a right time to do it, these are those times. We even have such a thing as classified information because in certain rare cases, for the sake of national security, it is better not to be “open and honest.”
This reminds me of the recent interview in Religion & Liberty with Uwe Siemon-Netto, a veteran Vietnam journalist and Lutheran theologian, who said,
In Vietnam, the U.S. has shown that when it gets tired or bored with a conflict, it will get out, using any oblique means to do so. Look at Afghanistan: The U.S. and NATO are behaving like a house owner leaving a note on his front door saying, “We are on vacation and won’t be back until Oct. 10. The code for our alarm system is 021133, and we are taking the dog with us.” This is demented. No thought is given to what will happen to Afghan women after our soldiers are gone.
With regards to the security necessary for “enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety,” our leaders seem to have blinders on regarding the unintended consequences of their statements and actions. Sometimes prudence requires knowing not only what to say, but when not to speak at all.
Lastly, while Comey may wish to sweep away such concerns for privacy as a mere “market demand,” that just obscures the fact that market demand is really another way of saying popular will. It is simply the economic dimension of it. The will of the people in this instance is for the FBI and others to protect their security without having access to look through every selfie on their iPhones.
That shouldn’t be too tall of a task for the FBI, should it?
