Everyone's talking about the big legal fight
that magistrate judge Sheri Pym has kicked off by ordering Apple to build a backdoor into an iPhone to get around security tools that would block attempts to decrypt the contents of the phone. As some are noting, if the ruling is not overturned it could force Congress to change the law
. Over the last year or so, it had become clear that Congress did not
support laws that mandate backdoors. Yes, some in Congress -- including Senators Richard Burr, Dianne Feinstein and John McCain -- have been pushing for such legislation, but most have admitted that there aren't nearly enough votes in support of that, and there are many in Congress who recognize the ridiculousness of such a law. A year ago, a congressional hearing made it clear
that there was a ton of skepticism in Congress about ordering backdoors.
And now we see Congress speaking out about the court order as well. Rep. Ted Lieu -- who, people always point out, has a computer science degree, and who a year ago noted that backoors were "technologically stupid" -- has told the DailyDot that this order creates a very dangerous slippery slope
"Can courts compel Facebook to provide analytics of who might be a criminal?" Lieu said in an email to the Daily Dot. "Or Google to give a list of names of people who searched for the term ISIS? At what point does this stop?"
Rep. Zoe Lofgren put out a detailed statement saying that the order was "an astonishing overreach of authority by the Federal government,"
and warned that it appeared to go against the wishes of Congress and
that even if the order is upheld, it will only result in stronger encryption that can't be backdoored:
Apple, as do other technology companies, complies with lawful orders and warrants. But they are unable to deliver to the government what they do not have – in this case, a key to break into their operating system in the manner the FBI desires. It is astonishing that a court would consider it lawful to order a private American company be commandeered for the creation of a new operating system in response.
The issue of mandating back doors in encryption has been a topic of vigorous discussion in the Congress. The emerging consensus has been that creating back doors for the use of law enforcement, important as law enforcement is, would endanger Americans by generally weakening security. These weaknesses will inevitably be exploited by criminal hackers or foreign opponents. That a single magistrate should substitute her judgment for that of the duly elected President and Congress – that was already thoroughly engaged in the subject – is wrong as a matter of policy and of law.
Finally, should this order not be overturned, technology companies will have no choice but to further deploy robust encryption that would prevent their engineers from creating any system that would effectively open up previously deployed security measures.
I urge the judicial branch to swiftly overturn this misguided ruling and further urge the Director of the FBI to refrain from seeking public policy decisions from the courts that are more properly decided by the Legislative branch of government.”
Senator Ron Wyden put out a statement as well
, noting how this ruling will be interpreted around the globe:
I don't take a backseat to anyone when it comes to hunting down terrorists and protecting Americans from harm. However, this unprecedented reading of a nearly 230-year-old law would create a dangerous precedent that would put at risk the foundations of strong security for our people and privacy in the digital age. If upheld, this decision could force U.S. technology companies to actually build hacking tools for government against their will, while weakening cybersecurity for millions of Americans in the process.
Furthermore, this move by the FBI could snowball around the world. Why in the world would our government want to give repressive regimes in Russia and China a blueprint for forcing American companies to create a backdoor? Companies should comply with warrants to the extent they are able to do so, but no company should be forced to deliberately weaken its products. In the long run, the real loses will be Americans' online safety and security.
Of course, not all our lawmakers are so enlightened. Senator Feinstein, despite technically representing Apple, has shown for a long time now that she has no interest at all in representing the true interests of anyone in California if it goes against the desire of the surveillance state. She basically told Apple to shut up and do what the court says
. After pretending it's about protecting Californians (because San Bernardino is in California) she warns that if Apple doesn't obey it will force her and Senator Burr to push for the legislation they've already been pushing for:
I would hope that bill would not be necessary. I would hope Apple understand the seriousness of this request. I have no doubt that to deny the request would likely bring on law to change law, so that this can be done. We're in jeopardy if you cannot -- through proper evidence submitted by a probable cause warrant -- be able to open these systems.
The PBS interviewer who asked Feinstein about this also asked (twice!) about Apple's statement that creating backdoors will create opportunities for those with malicious intent to break into the phones as well, and Feinstein displays her technological ignorance by stating:
Oh I don't believe that's necessarily true.
She's wrong about that. She's literally advocating for everyone to be made less safe just so we can get a little more information on some people who we already know committed a crime. That's crazy.
And, of course, Senator Burr made a similar statement
-- first by lying and pretending that the order is not about creating a backdoor:
There are no decryption demands in this case, and Apple is in no way required to provide a so-called backdoor. The FBI needs access to the phone so the agency can better piece together information about the terrorists and whom they contacted.
This is technologically ignorant as well. This is exactly
what a backdoor is. Apple is being told to create a bit of software that disables security measures in order to decrypt encrypted material. That's the very definition of a backdoor. Burr goes on, pretending that weakening the safety and security of basically everyone is somehow making them more secure:
The iPhone precedent in San Bernardino is important for our courts and our ability to protect innocent Americans and enforce the rule of law. While the national security implications of this situation are significant, the outcome of this dispute will also have a drastic effect on criminal cases across the country. The newest Apple operating systems allow device access only to users — even Apple itself can’t get in. Murderers, pedophiles, drug dealers and the others are already using this technology to cover their tracks.
Yup, always bring up the holy trinity of "murderers, pedophiles and drug dealers." I'm amazed he didn't say terrorists as well. Of course, as people keep pointing out, there have always been ways for people with ill-intent to hide their communications. There's nothing in the law that says we have to be able to track every communication ever made by everyone. That's a dystopian vision -- but one that apparently Senator Burr likes.
Even worse, Burr insists that because the law "protects" Apple in other cases, it should roll over for this. And also, ridiculously, he argues that this is more about Apple's business model than protecting the safety of Americans.
Apple’s position in the San Bernardino case affirms that it has wrongly chosen to prioritize its business model above compliance with a lawfully issued court order. While the company may have routinely complied with such court orders in the past, it now claims that it cannot comply as a result of security features it has built into its newest products. Apple exists as a corporate entity with the protections provided by U.S. laws, but it cannot be allowed to pick and choose when to abide by those laws as it sees fit. We are a country of laws, and this charade has gone on long enough. Apple needs to comply with the court’s order.
Hilariously, this is the very same Senator Burr who, just months ago, was going on and on
in Congress about the importance of cybersecurity, and fearmongering about "cyberattacks." What he doesn't seem to recognize is that the only real way to protect against those attacks is encryption. The very encryption he now seeks to undermine.
Others in the Senate are making similarly ignorant statements, including Senator Tom Cotton, whose statement is so over-the-top ridiculous and wrong
as to almost not be worth mentioning:
"Apple chose to protect a dead ISIS terrorist's privacy over the security of the American people. The Executive and Legislative Branches have been working with the private sector with the hope of resolving the 'Going Dark' problem. Regrettably, the position Tim Cook and Apple have taken shows that they are unwilling to compromise and that legislation is likely the only way to resolve this issue. The problem of end-to-end encryption isn't just a terrorism issue. It is also a drug-trafficking, kidnapping, and child pornography issue that impacts every state of the Union. It's unfortunate that the great company Apple is becoming the company of choice for terrorists, drug dealers, and sexual predators of all sorts."
I mean, come on. Apple is not "protecting a dead ISIS terrorists' privacy," it's talking about the very real issue of whether or not courts have the power to order companies to hack their customers on behalf of the government. That's a big deal that you would think
would matter to politicians.
These statements are not unsurprising, but they continue to show a level of profound ignorance about basic technology issues. The fact that Feinstein and Burr, at least, are working on legislation around an issue they so clearly have no clue about is downright scary. One hopes that the others who actually understand the technical and legal issues -- such as those at the top of this article -- will prevail in Congress.