Senator Lindsey Graham Finally Talks To Tech Experts, Switches Side In FBI V. Apple Fight

from the a-road-to-Cupertino-conversion dept

On February 18th, Senator Lindsey Graham had this to say about the FBI v. Apple court battle.

Our nation is at war and this iPhone was used to kill Americans. We need to protect our homeland, not terrorists. To Tim Cook and Apple, cooperate with the FBI.

As surprised as we were to learn it was an iPhone that killed 14 people in San Bernardino, rather than the attackers and the weapons they wielded, Graham had yet another surprise in store for us.

Sen. Lindsey Graham (R-S.C.), who last December called on Silicon Valley to stop selling encrypted devices, expressed serious concern on Wednesday about the precedent the Department of Justice would set if it successfully compels Apple to break iPhone security features.

“I was all with you until I actually started getting briefed by the people in the Intel Community,” Graham told Attorney General Loretta Lynch during an oversight hearing in the Senate Judiciary Committee. “I will say that I’m a person that’s been moved by the arguments about the precedent we set and the damage we might be doing to our own national security.”

This is what happens when legislators stop following their gut instincts on subjects they know little about and actually seek input from those who do know what’s involved and what’s at stake. Graham — without speaking to “people in the Intel Community” — originally presented terrorism as Apple’s problem. With the benefit of technically-adept hindsight, Graham is now seeing this for what it is: a push for a dangerous precedent that won’t end with this one iPhone and Apple. It will move on to other manufacturers, service providers and communications platforms. Because this one iPhone (which is actually twelve iPhones) is just the foot in the door. Apple does not hold a monopoly on encrypted communications.

“One of the arguments Apple makes is that there are other companies that make encryption,” Graham said to Lynch during the hearing. “So from a terrorist point of view, you’re not limited to Apple’s iPhone to communicate are you?”

“I think the terrorists use any device they can to communicate,” the Attorney General responded.

“So this encryption issue, if you require Apple to unlock that phone that doesn’t deny terrorist the ability to communicate privately does it, there are others ways they can do this,” Graham noted.

The FBI — which sees any communications it can’t access as nothing more than a collection of smoking guns comprised of 0s and 1s — will not stop with Apple. It already has its eyes on WhatsApp, one of the biggest messaging apps in the world — one that also features end-to-end encryption.

The underlying point Graham is making — having now spoken with those with the most at stake — is that a successful push to force American companies to provide unprecedented access to law enforcement does little to stop global terrorism, while causing tremendous damage to those forced into complicity. If the FBI manages to pry open the front door, every other nation in the world is going expect Apple to hold the door open for them as well. And if they can’t find a way to force Apple to do that, they may block it from selling its products in their countries. Or Apple may decide the market isn’t worth the security hit. Either way, it hurts Apple, and terrorists will just move on to the next service/platform/manufacturer.

It’s heartening to see Graham come around on this, especially considering he’s spent the last few months coming down harshly on phone manufacturers for refusing to immediately comply with every ridiculous government demand.

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Comments on “Senator Lindsey Graham Finally Talks To Tech Experts, Switches Side In FBI V. Apple Fight”

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Anonymous Anonymous Coward says:

There's that word again.

“Our nation is at war…”

Please cite the bill or resolution passed by Congress that names the enemy and declares war.

Along with the ‘war’ on drugs, the ‘war’ on poverty, the ‘war’ on crime, the ‘war’ in Vietnam, the ‘war’ in Korea, all of the middle and far east ‘wars’, etc., there has not been a declared war since WWII. Either commit to a war or stop calling it a war, otherwise it is just propaganda.

Oh, and while you are at it, find a diplomatic way to resolve conflicts, even if you have to eat a little crow (or a lot).

Anonymous Coward says:

Re: There's that word again.

Please cite the bill or resolution passed by Congress that names the enemy and declares war.

Wikipedia says Pub. L. 107-40, codified at 115 Stat. 224. Not going to bother to check the cite, since the basic facts are well-known and not open to reasonable dispute.

As a matter of constitutional law, nothing at all requires Congress to use any set formula or “magic words.”

DannyB (profile) says:

Re: Re: There's that word again.

That is a very neat way of having an undeclared war that never ends. With goals that are unclear. Against an enemy that is difficult to precisely identify.

We have always been at war with Eastasia.

Followed by…

We have always been at war with Eurasia.

A defense contractor’s dream come true.

Quiet Lurcker says:

Re: Re: There's that word again.

But see

I checked three or four at random. They all contained effectively the same language: that the state of war – and they do use that specific phrse – exists between the U.S. and whichever nation/opponent is intended.

To borrow a turn of phrase from various legal papers I’ve read from time to time, it stands to reason, if Congress had meant to declare war on [drugs | terror | poverty | whatever else], they would have said ‘the state of war exists’.

Anonymous Coward says:

Re: Re: Re: There's that word again.

… it stands to reason…

Did you check the court cases interpreting the language of the operating AUMF?

For example, Hamdi v Rumsfeld (2004)

The AUMF authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the “necessary and appropriate force” Congress has authorized the President to use.

(Emphasis added.)

You don’t get to “fundamental and accepted [] incident to war” without “war” in a constitutional sense.

Anonymous Coward says:

Re: There's that word again.

1) The War Powers Act passed by Congress and signed by President Nixon grants the President limited authority for using military force (and yes that limited authority has been abused);

2) “Authorization for Use of Military Force” resolutions passed by Congress for Desert Storm and other actions. Yes, not all campaigns of the last few decades had such ‘authorization’ – Vietnam a good example.

What you’re asking for – and AFAIK has not happened – is a constitutional challenge for both given the US Constitution expressly states that Congress shall declare war. Many of the AUMFs started out as so-called peacekeeping missions or responding to a request for assistance, but ended up effectively in a war scenario.

Jason says:

"people in the Intel Community"

Almost as impressive to me as his turnaround on the issue is that he managed to do it without being insulting. No “nerd” or “geek” references anywhere, or at least that I noticed.

Related question, though; did he really say “Intel(TM) Community” or was it an implied “Intel(ligence) Community”?

Anonymous Coward says:

Re: "people in the Intel Community"

‘did he really say “Intel(TM) Community” or was it an implied “Intel(ligence) Community”?’

Is there a difference?

Intel put in AES & random # instructions, but who can trust them? All the AES instruction has to do is squirrel away your private key somewhere. All the random # instruction has to do is follow NSA’s backdoor instructions.

Ninja (profile) says:

At least he listened to the experts and changed his position based on the facts presented. However there are way too many politicians like our own whatever that won’t accept the facts whatsoever. Either because they are like our troll or because they have intere$$$$ts behind them.

In any case it’s good to hear somebody actually listening to the ones that know what they are talking about.

Anonymous Coward says:

Re: Re:

I’m willing to bet he had a discussion with some people in the “intel(ligence) community” and was acutally scared out of his mind at their opinions on this topic.

I’m guessing it went something like this:

“Oh yeah, we’ll definitely weaken the privacy of the entire nation, but that’s a small price to pay for the brand of security we’re selling, right? – and you know we’re the good guys, right? Certainly not all those iPhone-toting sheeple out there. So yeah, we gotta get Apple and every other company doing business in this nation to open up security holes in their products and let us in, or the bad guys will win, and your family could be next.”

DannyB (profile) says:

Government trying to avoid an open conflict

NY Times:

Many senior officials say an open conflict between Silicon Valley and Washington is exactly what they have been trying to avoid

But it was the FBI that brought this argument into the public, when Apple wanted it under seal.

And the government has been working to alienate the tech industry while saying they want to avoid a conflict. The NSA secretly tapping intra-data-center communications. Remember how extremely pissed off Google and others were about that? And started encrypting everything! (oh my!)

Hey, I don’t want an open conflict with you. I just want to slander you in public, tell lies about you, accuse you of helping terrorists for marketing reasons, etc. I want to force you to expend engineering resources that take away from your next product development cycle. And of course, without any compensation. But I don’t want an open conflict, I swear. Oh, and now I might want to force you to give me your source code AND private keys. But really, I don’t want a conflict.

Oh, and Mr. tech industry, please, please be my friend. Come work with the government and help us.

Avatar28 (profile) says:

Re: Government trying to avoid an open conflict

I will just point out here that the government HAS offered reimbursement for the development costs. What they WON’T reimburse is the massive loss of goodwill and likely market share if it happens.

Also Apple didn’t necessarily WANT the case under seal, they were just okay with fighting it under seal. It’s the FBI that decided to make it public thinking the public would be like, “ooh, terrorism!”

Now if I were really conspiracy-minded, I would expect there to be ANOTHER terrorist attack soon, this one much worse, and the government really MUST get at that data because they were part of a group planning more.

DannyB (profile) says:

Re: Re: Government trying to avoid an open conflict

They also don’t reimburse opportunity cost.

That is the loss of money that might have been made by missing a new market opportunity because they are busy writing a new OS for the FBI. That could be a huge cost to the company.

And if not missing a new market, maybe just being a late entrant. Or having a new feature after a competitor rather than before the competitor has it.

wiserabbit says:

Re: Government trying to avoid an open conflict

I think what we all miss with these theatrics is that there’s Washington D.C. and then there’s the rest of the world. The language and culture of D.C. is different than the rest of the world (possibly with the exceptions of other seats of power).

Hurling words is not open conflict in D.C. It probably isn’t even conflict at all. It is just a press release to them. Normal operating procedure. Throw and insult and then everyone goes out for a beer afterward. It is just part of “the game”.

The same goes for “having a conversation”. Everyone in D.C. wants to “have a conversation” with Silicon Valley. Silicon Valley (and the rest of us who aren’t in Silicon Valley) have already explained this numerous times. But “having a conversation” means something different to them. It means that you go in and tell them what they want to hear that they can sell. If you haven’t done that (and clearly, we have not) means that the conversation has not happened.

It is kind of like when they talk about “the people”. They aren’t actually talking about us.

Ryunosuke (profile) says:

imagine, if you will, Apple pulls out of the US phone market because of our govt. 2 things WILL happen.

1) there WILL be such a massive backlash against the govt. that the whole issue will become as toxic, if not more so, than when SOPA was first defeated. NO ONE in the govt is gonna touch that subject with a 20 ft pole.

2) That whole TTP/TTIP issue, and at large ICSID (International Centre for the Settlement of Investment Disputes) Basically, Apple COULD sue the US Govt over lost profits (which is not a small number last I recall) and future profits, because of a govt action against it.

That One Guy (profile) says:

Re: Re: Re: Re:

And now for the really messed up part:

If forced to choose between a device that may have been compromised by the USG, and a device that may have been compromised by the Chinese or SK governments, I would choose the latter every single time. If they get their hands on something incriminating or valuable odds are they won’t really care as they’ve got bigger fish to fry in their own countries and what they could gain from me is less than what it would cost them to get it.

On the other hand between good old evidence laundering and sloppy security allowing access to massive treasure troves of personal and valuable data to anyone who cares to make a grab for it, the same data in the hands of the USG has a much higher chance of causing problems for me, which means I’m safer with a foreign government spying on me than I am with my own doing the same.

Anonymous Coward says:

Given all the BS that politicians have been into since back in the days of Reagan, one thing that has ear marked them has not been listening to the people they are making laws against unless it involves a paycheck. This effectively ruling out listening to the voters.

With today’s sentiments displayed by the voters one has to ask, when does Senator Lindsey Graham come up for election? If it is this coming year, then the reason for his turn around may have nothing to do with what the security branches want but rather with saving his own political hide.

Even if his reelection is another 3 years away, there is still his own party to consider in this. Pushing the unpopular and much unwanted by the public won’t endear his party to the voters either.

Seems the only time the political gang listen to the voters is when their own jobs are on the line. At this point in time, given past history, I place no faith in Senator Graham suddenly getting religion on this issue.

Prashanth (profile) says:

Turnaround, in public too

As shocking as it is for me to see a hawk like Lindsey Graham turn around on this issue, I’m even more shocked that a politician like him is willing to admit that (1) they changed positions and (2) they did so after carefully reconsidering the evidence and talking to experts. Even if it went the other way (going from supporting Apple to supporting the FBI/DOJ), I’d be heartened by the honesty.

General Nobody (profile) says:

Iraqi War Afganistan War Syrian War etc..

How many people have died at the hands of those setting off IEDs with cell phones in these wars and no one decides to eradicate cell phone towers? I was under some impression that military could communicate with the use of satellite phones and could completely destroy an enemy’s capability to communicate through cell phones without deprecation to their own communication systems.

KissMyWookiee (profile) says:

Devices aren't responsible ... Until they are?? huh?

“As surprised as we were to learn it was an iPhone that killed 14 people in San Bernardino, rather than the attackers …”

So you aren’t blaming the tools used by people (“the attackers”) to kill other people?

“… and the weapons they wielded”

Oh, then you are blaming tools used by people to kill other people. – Wait a minute, I’m confused.

No matter what type of tool is used in the commission of crime, ultimately it was a person making wilful decisions and controlling those devices. It is completely illogical to try and blame the crime on an inanimate object(s) – whether the object was a smartphone, a crowbar or a gun – The sole responsibility lies with the one capable of thought.

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