Digital eyes on the prize
Shortly after the news flurry surrounding the public dispute between the Federal Bureau of Investigation and Apple Inc., the American Enterprise Institute’s Gus Hurwitz argued in a Feb. 19 Tech Policy Daily post that the federal All Writs Act clearly applied to the bureau’s demand that Apple circumvent security features it designed into the iPhone 5c (and other recent iPhone models).
Specifically, Hurwitz wrote this:
Here’s the key thing to understand about the current situation: It is not about encryption. No part of Judge Pym’s order comes close to requiring Apple to decrypt, assist in decrypting, or weaken the encryption used on the iPhone. Rather, Apple has designed its products with an easily enabled self-destruct feature. That is, they have designed their products to destroy evidence that the government routinely would otherwise have legitimate need for and access to. Judge Pym’s order requires Apple to assist the FBI in disarming the booby traps that Apple designed and distributed.
In major respects, what Hurwitz says here is plainly false.
First, the idea that Apple designed “booby trap” features “to destroy evidence” is not supported by any facts that Hurwitz can adduce. There are no booby traps (you won’t get blown up if you type in too many wrong passcodes).
More importantly, false passcodes won’t “destroy evidence,” because the data are not erased on the phone when you type in incorrect passcodes. Instead, they remain encrypted, which means that, to a large degree, they are safe from both burglars and FBI agents.
In a sufficiently important case—one similar, say, to the San Bernardino or Paris terrorist attacks—the FBI likely has access to technologies that would allow the bureau to overcome security measures that would block ordinary snoops and criminals.
So why are Hurwitz (a former federal trial attorney) and the FBI on the warpath against Apple? The answer is trickier than they would have you believe. It’s not about one case or one iPhone. Instead, it’s about legal principles and about whether we honor an individual citizen’s integrity in the face of a government mandate.
What seems self-evident, after basic investigations of the technology Apple used in the iPhone 5c, is that the company designed its technological protection measures (let’s call them “TPMs”) to protect users. Other technology companies also have provided TPMs to make sure we feel reasonably safe using our smartphones, now that we routinely store so much of our daily lives on them. Personally, I’m grateful to Apple and other technology providers (like Google, which provides encryption-based features on Android phones) that do so.
Here’s why: if the FBI somehow managed to personally interview every member of my family and all my Facebook friends (I’m a promiscuous friender), they’d still know less about my personal life than someone who stole and somehow who got past the TPMs on my iPhone. Our smartphones these days are intimate devices. It’s not unfair to say they reflect not just what we do in the real world, but also how we conduct our inner lives. The hypothetical thief who beat security on my iPhone would have access to more of my financial, health, personal and social information than all my family members and Facebook friends put together.
I’m no criminal, but neither am I happy with any interpretation of the law that says the FBI can compel Apple to give them access to all that information. This reflects no special institutional dislike of the bureau on my part. I’m nervous about the idea that any state, federal or foreign government might possess every financial, eccentric or intimate fact on my phone, even where that government may mean well.
Thus, Hurwitz is clearly wrong on the technological details. But it’s worth stressing that he’s also hugely careless on the law.
He’s certainly wrong in how he describes the All Writs Act. Notably, he falsely characterizes the All Writs Act as “a cornerstone of the judiciary, with origins predating the birth of our nation by several times our nation’s age.”
How can the All Writs Act – which Hurwitz nevertheless allows is “a relatively arcane law” – be such a cornerstone?
The answer is … it isn’t.
Hurwitz conflates one tiny statute (here’s a PDF of it) with the comprehensive First Judiciary Act, aka the Judiciary Act of 1789. Hurwitz quotes retired Supreme Court Associate Justice Sandra Day O’Connor, who praised the big Judiciary Act, which created our federal court system, in a way designed to lead his readers into thinking O’Connor heaped such praise on the teensy All Writs Act. (Of course, while O’Connor is right to praise the Judiciary Act as a whole, it also had its infelicities — after all, part of it was found unconstitutional in a little case we like to call Marbury v. Madison.)
Whether you think Hurwitz misrepresented the All Writs Act deliberately or (as I prefer to think) aspirationally, it’s clear that Hurwitz and other bloggers who want to beat the drum on the FBI’s behalf would prefer we all think of Apple’s pro-user-protection design as vaguely criminal, and that we think of the FBI’s initiative to weaken smartphone security, and digital security generally, as something “with origins predating the birth of our nation.”
But the origins that predate birth of our nation actually stress limitations on government, and not invariable affirmations of government prerogatives. As William Pitt the Elder put it in 1763, “The poorest man may in his cottage bid defiance to all the forces of the Crown.”
Rather than hearkening to the past, this latest push by would-be security hawks to compel Apple’s (and other companies’) assistance in sidestepping digital security should call our attention to the present and to the future.
With regard to the present, it’s clear that if Congress had believed the All Writs Act applied to demands like the FBI’s current push to make iPhones stand and deliver, there would have been no need to pass the Communications Assistance to Law Enforcement Act of 1994 – 15 pages or so of federal law that define telecom companies’ obligations to assist law-enforcement agencies (and that appropriated $500 million to help pay for the technology changes it imposed on companies).
As for the future, consider this: as intimately connected as we are today to our smartphones, it’s likely that, as the 21st century progresses, we’ll be even more intimately connected to technologies that help us in our daily lives.
It’s easy to imagine a near-term future in which individuals who were blinded by accident are given the ability to see again thanks to digital technologies implanted in their eyes or in their brains. Do we think the FBI or a federal magistrate should have the power to compel government access to those near-future digital eyes?
That’s the question we must ask now of the FBI, our legal system and our society.
I’m pretty sure I know how William Pitt the Elder would have answered the question. I’m certain I know how I would.
