Yesterday, at the excellent RightsCon event in San Francisco, Senator Ron Wyden gave a barn burner of a speech, in which he detailed why it was so important to protect our privacy and security in a digital age, at a time when law enforcement and the intelligence communities are digging deeper and deeper into all of our personal information. He started out with a clear and emphatic statement on how he will block any attempt by Congress to undermine encryption:
I am here to tell you why I will use every power I have as a senator to block plans to weaken strong encryption. I am here to tell you why FBI Director Comey’s plans and expected legislation will be a lose-lose - they would lead to less security and less liberty
Furthermore, he made it clear that anyone who says that this just a debate between privacy and security has it totally wrong:
And let me be clear at the outset that the debate about data security is not about choosing security or choosing privacy. It is about choosing less security or choosing more security. People who think that the government should have more surveillance powers will often try to frame this debate as a choice between privacy and security. They are wrong. Our job is to convince the public that when politicians or the news media say that, we are here to tell you it’s not the case. It’s less security versus more security.
He further pointed out that, contrary to the claims of James Comey and others in law enforcement, this is the "golden age of surveillance" in that modern technologies have given law enforcement much more access to private information than they've ever had before. And he compared the freakout claims from law enforcement to similar claims 50 years ago, when the Supreme Court ruled in Miranda v. Arizona that law enforcement had to read people their rights -- and law enforcement and the media insisted this would lead to much more criminal activity:
I think that it is useful to compare this discussion to another one that was playing out fifty years ago. Fifty years ago this summer, the Supreme Court handed down a landmark decision in the case of Miranda vs. Arizona, in which the Court ruled that before law enforcement officers interrogate a suspect, they must advise that person of his or her constitutional rights. Everyone who’s ever watched a TV cop show knows this – you have the right to remain silent, you have the right to an attorney, and so forth. Today, this is a very important feature of the American justice system. It helps ensure that poor people know that they have the same rights under the law as rich people who can afford high-priced lawyers. And it helps reduce the likelihood of innocent people who are unsure about their rights being pressured to sign false confessions. The Miranda ruling helped bring our country closer to the promise of equal justice for all.
But if you had been following the public debate back in the summer of 1966, you would have heard a lot of politicians and prosecutors saying that the sky was falling. A few weeks after the decision, a New York Times headline read “Miranda Decision Said to End Effective Use of Confessions.” The article quoted some of the most respected prosecutors and law enforcement officials in the country warning that this decision was an absolute catastrophe. Future president Richard Nixon called the ruling a “Dickensian legalism” that would “hamstring” law enforcement, and he even suggested that the Constitution should be amended to overturn it.
Needless to say, the sky did not fall. In fact, crime rates have been dropping for the past twenty or thirty years. The national murder rate and burglary rate are both lower than they were the day that the Miranda ruling was handed down. Obviously there are a lot of factors that go into crime rates, but I think it’s clear that despite all of the dire warnings from both politicians and respected law enforcement officials, this ruling did not lead to the end of law enforcement in America. Fifty years later, the Miranda ruling remains a cornerstone of American due process.
Protecting strong encryption to safeguard Americans’ private data. Wyden’s Secure Data Act would ban the government from forcing companies to build backdoors or otherwise weaken the security of their products.
Overhauling the Third Party Doctrine to make clear individuals do not lose their privacy rights just because they share some of their personal information with a particular company.
Increasing transparency by holding at least three congressional hearings each year on the privacy impacts of surveillance laws, authorities and practices.
Being on high alert for fresh attempts to undermine checks on government power. Right now the Justice Department is seeking a change to the rules for getting warrants to track computer hackers that would allow DOJ to use a single warrant to remotely access any computer that a suspected hacker is believed to have broken into. This rule change could potentially allow federal investigators to use a single warrant to access millions of computers, and it would treat the victims of the hack the same as the hacker himself.
Finally, the government must do much more to hire people who understand technology and the implications of weakening digital security and privacy.
He spent some time in his speech blasting the concept of the third party doctrine and how ridiculous it is in practice:
Here’s the problem. A few decades ago, courts began ruling that if you provide information to a third party, like your bank or your phone company, you are no longer keeping it private, and it is no longer protected under the Fourth Amendment to the Constitution.
There is a huge, glaring problem with that logic. When you share your information with a single private company, that is not the same thing as making it public. Your phone company may have records of who you call, and your bank may have records of how you spend your money, but your contract with them will have rules for when and how they are allowed to share that information. They are not allowed to just disclose it freely.
This is true in the digital world as well. When I post a handsome new profile picture on Facebook, or send out a tweet to tell people that I’m holding a town hall in Oregon, I’ve chosen to make that information public. But when I send an email to my wife, or store a document in the cloud so I can work on it later, my service provider and I have an agreement that my information will stay private. The premise in current law is that I have agreed to make that information public just because my service provider is holding it. And that premise is simply absurd.
It's yet another great speech on an important topic from Senator Wyden -- and he includes a call to action to get people who support this vision to speak out on it. As it stands right now there are a few others in Congress who get how important all of this is, but many do not. And that needs to change. And while many people will be quite cynical about this and say that we'll never get others in Congess to recognize this issue, Senator Wyden reminded everyone that many people had the same view about SOPA/PIPA and the public eventually shifted Congress' position on that as well:
We can win this fight for security and liberty. It obviously won’t be easy, but we’ve done it before. Remember in the January of 2012, we were talking about the anti-Internet SOPA and PIPA bills. The first vote was on whether to override my hold on PIPA. Talk about long odds. The Chamber of Commerce, Hollywood, all the powerful special interests were against us. When that debate started, no one gave us a chance. Then the Internet community mobilized. Websites went dark in protest. And when the dust settled, well, everyone here knows how that ended. We won. Let’s work together and do it again.
While I do worry about the tendency of some to always roll out the "SOPA example" as proof, it is true that when enough people speak up, all the lobbyists and money in the world can be defeated. And this is a time when it would be nice to see that happen again.
from the another-security-theater-script-rewrite-in-the-works dept
Another terrorist attack somewhere in the world* has provoked another round of punditry from former government officials on how to protect America from future attacks. Over the coming weeks, there will be no shortage of stupid ideas, useless ideas and pointless discussions about "heightened security" at any place people gather.
*"World" = Western Europe only
None of it will matter. Security has never really been scaled back anywhere since the 9/11 attacks -- certainly not to the levels seen prior to September 2001. There's only so much security anyone can actually provide but endless off-Broadway productions of security theater to be explored.
“Well I have to say this is something I’ve spoken to people about for some time. The actual portion of the airport before the checkpoint is not really controlled by the federal government, it’s controlled by the local authorities. And it has increasingly become vulnerable, because as people wait to go through security they actually congregate there.”
I'm not sure the local boys will appreciate this dig at their security skills. But Chertoff's "solution" is just a literal expansion of federal government territory.
“And so now there’s an effort I think on the part of TSA to start to move the airports into pushing the security envelope back. We’ve seen some of that in terms of not allowing you to park in front of the terminal, but I think we’re going to have to step that up.”
So… move the target. Instead of being deep inside the airport, it will be closer to the entrance. As Gawker's Alex Pareene notes, at some point you can't push the envelope back any further. And there's no expansion point that will magically protect fliers from terrorist attacks.
Ah. Of course. We’ll “push the security envelope back.” The old checkpoints created crowds, sure, but once we move the security checkpoints back, just a bit bit further (to just before you enter the airport, I guess), it will be much safer for everyone, at least once everyone gets past the new checkpoints. Maybe eventually we can push the security envelope back to before you get in your car to go to the airport—your garage door, maybe?
Push people closer to the entrance. Make them more vulnerable to car bombs/larger groups of attackers. Push the envelope all the way out to the connecting roads. Same problem but with the added bonus of intrusive vehicle searches for everyone heading to the airport, whether they're planning to fly or not. There's no point where traveler safety suddenly spikes. Every nudge of the envelope opens as many attack vectors as it shuts down.
That's the ridiculousness of the TSA. It has done almost nothing to make flying safer. The only thing anyone can say for sure is that the TSA has made flying more annoying.
Maybe they'll move the checkpoints. Maybe they won't. Airplanes aren't the target. People are. And people are everywhere. To paraphrase Abraham Lincoln, you can't save all of the people all of the time, but you can make most of them miserable most of the time. That's how the DHS works. Actions must always be followed by reactions specifically tailored to address the parameters of the last attack or perceived threat. Somehow, we'll be safer by staying one step behind and ceding control to the government.
The unintended but entirely predictable consequences from the UK's disastrous Counter-Terrorism and Security Act keep on a-coming. You will recall that this handy piece of legislation tasked teachers with weeding out possible future-terrorists amongst the young folks they are supposed to be teaching. This has devolved instead into teachers reporting children, usually children that would be peripherally identified as Muslim children, to the authorities for what aren't so much as transgressions as they are kids being kids. It has even turned some teachers into literal grammar police, because the universe is not without a sense of humor.
And now we learn that these part-teacher-part-security-agents may be incorporating art criticism into their repertoire, having reported a young Muslim boy of four years old to the authorities because of his inability to properly illustrate a cucumber.
Concerns were raised after the youngster drew a picture of a man cutting the vegetable. [The child's mother] said she feared her children would be taken away from her and added: 'But I haven't done anything wrong... It was a horrible day." Teachers and public service workers have a legal obligation to report any concerns of extremist behaviour to the authorities since July.
And here is the picture the child drew of himself cutting a cucumber.
Now, if we hold our nose and choose to forget for a moment that this is a four year old we're talking about, and not the re-animated corpse of Vincent Van Gogh, we might all agree that the picture on the left looks like a person holding a giant freaking sword, instead of a kitchen knife. The picture on the right will look like pretty much anything you want it to look like because, again, this is a four year old toddler we're talking about. So, it appears the teachers asked the child what he was attempting to draw in the picture, and the response would have been benign, except it hit one of the terrorism buzz-words, kinda sorta.
Staff in Luton told the child's mother they believed he was saying "cooker bomb" instead of "cucumber".
"[The member of staff] kept saying it was this one picture of the man cutting the cucumber....which she said to me is a 'cooker bomb', and I was baffled," she told the BBC Asian Network.
So the child, in addition to being unable to draw a cucumber sufficiently to get teachers to understand the portrayal he was attempting, also wasn't able to properly pronounce the word cucumber, and it apparently came out of his mouth close enough to "cooker bomb" for the nursery staff to freak out and into the de-radicalization program the child goes. I can't stress enough that this child is four years old.
Nor that the staff's interpretations here don't make any sense. So they believed the child was saying he was sawing into a cooker bomb with a death-sword? And that's a more plausible scenario than the staff concluding that this toddler was doing something completely innocent and wasn't articulating properly?
One wonders, as always, just how much leeway would have been afforded the boy if he had pale skin and blue eyes.
The US government has made numerous attempts to obtain source code from tech companies in an effort to find security flaws that could be used for surveillance or investigations.
The government has demanded source code in civil cases filed under seal but also by seeking clandestine rulings authorized under the secretive Foreign Intelligence Surveillance Act (FISA), a person with direct knowledge of these demands told ZDNet. We're not naming the person as they relayed information that is likely classified.
With these hearings held in secret and away from the public gaze, the person said that the tech companies hit by these demands are losing "most of the time."
That's hardly heartening. The DOJ would only go so far as to confirm this has happened before, likely because there's no way to deny it. The documents from the Lavabit case have been made public -- with the DOJ using a formerly-sealed document to hint at what could be in store for Apple if it refuses to write FBiOS for it.
Unfortunately, because of the secrecy surrounding the government's requests for source code -- and the court where those requests have been made -- it's extremely difficult to obtain outside confirmation. Whittaker contacted more than a dozen Fortune 500 companies about the unnamed official's claims and received zero comments.
A few, however, flatly denied ever having handed over source code to the US government.
Cisco said in an emailed statement: "We have not and we will not hand over source code to any customers, especially governments."
IBM referred to a 2014 statement saying that the company does not provide "software source code or encryption keys to the NSA or any other government agency for the purpose of accessing client data." A spokesperson confirmed that the statement is still valid, but did not comment further on whether source code had been handed over to a government agency for any other reason.
Cisco is likely still stinging from leaked documents showing its unwitting participation in an NSA unboxing photo shoot and has undoubtedly decided to take a stronger stance against government meddling since that point. As for IBM, its statement is a couple of years old and contains a major qualifying statement.
Previously-leaked documents somewhat confirm the existence of court orders allowing the NSA to perform its own hardware/software surgery. Presumably, the introduction of backdoors and exploits is made much easier with access to source code. Whittaker points to a Kaspersky Lab's apparent discovery of evidence pointing to the NSA being in possession of "several hard drive manufacturers'" source code -- another indication that the government's history of demanding source code from manufacturers and software creators didn't begin (or end) with Lavabit.
The government may be able to talk the FISA court into granting these requests, given that its purview generally only covers foreign surveillance (except for all the domestic dragnets and "inadvertent" collections) and national security issues. The FBI's open air battle with Apple has already proceeded far past the point that any quasi-hearing in front of the FISC would have. That's the sort of thing an actually adversarial system -- unlike the mostly-closed loop of the FISA court -- tends to result in: a give-and-take played out (mostly) in public, rather than one party saying "we need this" and the other applying ink to the stamp.
In all the discussions about Apple v. the FBI, a few people occasionally ask what would happen if Apple's engineers just refused to write the code demanded (some also ask about writing the code, but purposely messing it up). And now it appears that at least some Apple engineers are thinking about just this scenario. According to the NY Times:
Apple employees are already discussing what they will do if ordered to help law enforcement authorities. Some say they may balk at the work, while others may even quit their high-paying jobs rather than undermine the security of the software they have already created, according to more than a half-dozen current and former Apple employees.
As the NY Times notes, these details certainly add some pretty hefty weight to the First Amendment arguments about "compelled speech" that Apple has made (and that the EFF doubled down on in its amicus brief). As for what then would happen... that's up to the court, but it's likely that the court would find Apple in contempt and/or start fining it. But that still leaves open the question of how does it comply if not a single engineer is willing to help out.
This particular legal dispute gets more interesting day by day...
Not surprisingly, Oliver's take is much clearer and much more accurate than many mainstream press reports on the issues in the case, appropriately mocking the many law enforcement officials who seem to think that, just because Apple employs smart engineers, they can somehow do the impossible and "safely" create a backdoor into an encrypted iPhone that won't have dangerous consequences. He even spends a bit of time reviewing the original Crypto Wars over the Clipper Chip and highlights cryptographer Matt Blaze's contribution in ending those wars by showing that the Clipper Chip could be hacked.
But the biggest contribution to the debate -- which I hope that people pay most attention to -- is the point that Oliver made in the end with his faux Apple commercial. Earlier in the piece, Oliver noted that this belief among law enforcement that Apple engineers can somehow magically do what they want is at least partially Apple's own fault, with its somewhat overstated marketing. So, Oliver's team made a "more realistic" Apple commercial which noted that Apple is constantly fighting security cracks and vulnerabilities and is consistently just half a step ahead of hackers with malicious intent (and, in many cases, half a step behind them).
This is the key point: Building secure products is very, very difficult and even the most secure products have security vulnerabilities in them that need to be constantly watched and patched. And what the government is doing here is not only asking Apple to not patch a security vulnerability that it has found, but actively forcing Apple to make a new vulnerability and then effectively forcing Apple to keep it open. For all the talk of how Apple can just create the backdoor just this once and throw it away, this more like asking Apple to set off a bomb that blows the back off all houses in a city, and then saying, "okay, just throw away the bomb after you set it off."
Hopefully, as in cases like net neutrality, Oliver's piece does it's job in informing the public what's really going on.
This is not all that surprising, but President Obama, during his SXSW keynote interview, appears to have joined the crew of politicians making misleading statements pretending to be "balanced" on the question of encryption. The interview (the link above should start at the very beginning) talks about a variety of issues related to tech and government, but eventually the President zeroes in on the encryption issue. The embed below should start at that point (if not, it's at the 1 hour, 16 minute mark in the video). Unfortunately, the interviewer, Evan Smith of the Texas Tribune, falsely frames the issue as one of "security v. privacy" rather than what it actually is -- which is "security v. security."
In case you can't watch that, the President says he won't comment directly on the Apple legal fights, but then launches into the standard politician talking point of "yes, we want strong encryption, but bad people will use it so we need to figure out some way to break in."
If you watch that, the President is basically doing the same thing as all the Presidential candidates, stating that there's some sort of equivalency on both sides of the debate and that we need to find some sort of "balanced" solution short of strong encryption that will somehow let in law enforcement in some cases.
This is wrong. This is ignorant.
To his at least marginal credit, the President (unlike basically all of the Presidential candidates) did seem to acknowledge the arguments of the crypto community, but then tells them all that they're wrong. In some ways, this may be slightly better than those who don't even understand the actual issues at all, but it's still problematic.
Let's go through this line by line.
All of us value our privacy. And this is a society that is built on a Constitution and a Bill of Rights and a healthy skepticism about overreaching government power. Before smartphones were invented, and to this day, if there is probable cause to think that you have abducted a child, or that you are engaging in a terrorist plot, or you are guilty of some serious crime, law enforcement can appear at your doorstep and say 'we have a warrant to search your home' and they can go into your bedroom to rifle through your underwear to see if there's any evidence of wrongdoing.
Again, this is overstating the past and understating today's reality. Yes, you could always get a warrant to go "rifle through" someone's underwear, if you could present probable cause that such a search was reasonable to a judge. But that does not mean that the invention of smartphones really changed things so dramatically as President Obama presents here. For one, there has always been information that was inaccessible -- such as information that came from an in-person conversation or information in our brains or information that has been destroyed.
In fact, as lots of people have noted, today law enforcement has much more recorded evidence that it can obtain, totally unrelated to the encryption issue. This includes things like location information or information on people you called. That information used to not be available at all. So it's hellishly misleading to pretend that we've entered some new world of darkness for law enforcement when the reality is that the world is much, much brighter.
And we agree on that. Because we recognize that just like all our other rights, freedom of speech, freedom of religion, etc. there are going to be some constraints that we impose in order to make sure that we are safe, secure and living in a civilized society. Now technology is evolving so rapidly that new questions are being asked. And I am of the view that there are very real reasons why we want to make sure that government cannot just willy nilly get into everyone's iPhones, or smartphones, that are full of very personal information and very personal data. And, let's face it, the whole Snowden disclosure episode elevated people's suspicions of this.
That was a real issue. I will say, by the way, that -- and I don't want to go to far afield -- but the Snowden issue, vastly overstated the dangers to US citizens in terms of spying. Because the fact of the matter is that actually that our intelligence agencies are pretty scrupulous about US persons -- people on US soil. What those disclosures did identify were excesses overseas with respect to people who are not in this country. A lot of those have been fixed. Don't take my word for it -- there was a panel that was constituted that just graded all the reforms that we set up to avoid those charges. But I understand that that raised suspicions.
Again, at least some marginal kudos for admitting that this latest round was brought on by "excesses" (though we'd argue that it was actually unconstitutional, rather than mere overreach). And nice of him to admit that Snowden actually did reveal such "excesses." Of course, that raises a separate question: Why is Obama still trying to prosecute Snowden when he's just admitted that what Snowden did was clearly whistleblowing, in revealing questionable spying?
Also, the President is simply wrong that it was just about issues involving non-US persons. The major reform that has taken place wasn't about US persons at all, but rather about Section 215 of the PATRIOT Act, which was used almost entirely on US persons to collect all their phone records. So it's unclear why the President is pretending otherwise. The stuff outside of the US is governed by Executive Order 12333, and there's been completely no evidence that the President has changed that at all. I do agree, to some extent, that many do believe in an exaggerated view of NSA surveillance, and that's distracting. But the underlying issues about legality and constitutionality -- and the possibilities for abuse -- absolutely remain.
But none of that actually has to do with the encryption fight, beyond the recognition -- accurately -- that the government's actions, revealed by Snowden, caused many to take these issues more seriously. And, on that note, it would have been at least a little more accurate for the President to recognize that it wasn't Snowden who brought this on the government, but the government itself by doing what it was doing.
So we're concerned about privacy. We don't want government to be looking through everybody's phones willy-nilly, without any kind of oversight or probable cause or a clear sense that it's targeted who might be a wrongdoer.
What makes it even more complicated is that we also want really strong encryption. Because part of us preventing terrorism or preventing people from disrupting the financial system or our air traffic control system or a whole other set of systems that are increasingly digitalized is that hackers, state or non-state, can just get in there and mess them up.
So we've got two values. Both of which are important.... And the question we now have to ask is, if technologically it is possible to make an impenetrable device or system where the encryption is so strong that there's no key. There's no door at all. Then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have available to even do simple things like tax enforcement? Because if, in fact, you can't crack that at all, government can't get in, then everybody's walking around with a Swiss bank account in their pocket. So there has to be some concession to the need to be able get into that information somehow.
The answer to those questions in that final paragraph are through good old fashioned detective work. In a time before smartphones, detectives were still able to catch child pornographers or disrupt terrorist plots. And, in some cases, the government failed to stop either of those things. But it wasn't because strong enforcement stymied them, but because there are always going to be some plots that people are able to get away with. We shouldn't undermine our entire security setup just because there are some bad people out there. In fact, that makes us less safe.
Also: tax enforcement? Tax enforcement? Are we really getting to the point that the government wants to argue that we need to break strong encryption to better enforce taxes? Really? Again, there are lots of ways to go after tax evasion. And, yes, there are lots of ways that people and companies try to hide money from the IRS. And sometimes they get away with it. To suddenly say that we should weaken encryption because the IRS isn't good enough at its job just seems... crazy.
Now, what folks who are on the encryption side will argue, is that any key, whatsoever, even if it starts off as just being directed at one device, could end up being used on every device. That's just the nature of these systems. That is a technical question. I am not a software engineer. It is, I think, technically true, but I think it can be overstated.
This is the part that's most maddening of all. He almost gets the point right. He almost understands. The crypto community has been screaming from the hills for ages that introducing any kind of third party access to encryption weakens it for all, introducing vulnerabilities that ensure that those with malicious intent will get in much sooner than they would otherwise. The President is mixing up that argument with one of the other arguments in the Apple/FBI case, about whether it's about "one phone" or "all the phones."
But even assuming this slight mixup is a mistake, and that he does recognize the basics of the arguments from the tech community, to have him then say that this "can be overstated" is crazy. A bunch of cryptography experts -- including some who used to work for Obama -- laid out in a detailed paper the risks of undermining encryption. To brush that aside as some sort of rhetorical hyperbole -- to brush aside the realities of cryptography and math -- is just crazy.
Encryption expert Matt Blaze (whose research basically helped win Crypto War 1.0) responded to this argument by noting that the "nerd harder, nerds" argument fundamentally misunderstands the issue:
Figuring out how to build the reliable, secure systems required to "compromise" on crypto has long been a central problem in CS.
If you can't read that, Blaze is basically saying that all crypto includes backdoors -- they're known as vulnerabilities. And the key focus in crypto is closing those backdoors, because leaving them open is disastrous. And yet the government is now demanding that tech folks purposely put in more backdoors and not close them, without recognizing the simple fact that vulnerabilities in crypto always lead to disastrous results.
So the question now becomes that, we as a society, setting aside the specific case between the FBI and Apple, setting aside the commercial interests, the concerns about what could the Chinese government do with this, even if we trust the US government. Setting aside all those questions, we're going to have to make some decisions about how do we balance these respective risks. And I've got a bunch of smart people, sitting there, talking about it, thinking about it. We have engaged the tech community, aggressively, to help solve this problem. My conclusions so far is that you cannot take an absolutist view on this. So if your argument is "strong encryption no matter what, and we can and should in fact create black boxes," that, I think, does not strike the kind of balance that we have lived with for 200, 300 years. And it's fetishizing our phones above every other value. And that can't be the right answer.
This is not an absolutist view. It is not an absolutist view to say that anything you do to weaken the security of phones creates disastrous consequences for overall security, far beyond the privacy of individuals holding those phones. And, as Julian Sanchez rightly notes, it's ridiculous that it's the status quo on the previous compromise that is now being framed as an "absolutist" position:
CALEA--with obligations on telecoms to assist, but user-side encryption protected--WAS the compromise. Now that's "absolutism".
Also, the idea that this is about "fetishizing our phones" is ridiculous. No one is even remotely suggesting that. No one is even suggesting -- as Obama hints -- that this is about making phones "above and beyond" what other situations are. It's entirely about the nature of computer security and how it works. It's about the risks to our security in creating deliberate vulnerabilities in our technologies. To frame that as "fetishizing our phones" is insulting.
There's a reason why the NSA didn't want President Obama to carry a Blackberry when he first became President. And there's a reason the President wanted a secure Blackberry. And it's not because of fetishism in any way, shape or form. It's because securing data on phones is freaking hard and it's a constant battle. And anything that weakens the security puts people in harm's way.
I suspect that the answer is going to come down to how do we create a system where the encryption is as strong as possible. The key is as secure as possible. It is accessible by the smallest number of people possible for a subset of issues that we agree are important. How we design that is not something that I have the expertise to do. I am way on the civil liberties side of this thing. Bill McCraven will tell you that I anguish a lot over the decisions we make over how to keep this country safe. And I am not interested in overthrowing the values that have made us an exceptional and great nation, simply for expediency. But the dangers are real. Maintaining law and order and a civilized society is important. Protecting our kids is important.
You suspect wrong. Because while your position sounds reasonable and "balanced" (and I've seen some in the press describe President Obama's position here as "realist"), it's actually dangerous. This is the problem. The President is discussing this like it's a political issue rather than a technological/math issue. People aren't angry about this because they're "extremists" or "absolutists" or people who "don't want to compromise." They're screaming about this because "the compromise" solution is dangerous. If there really were a way to have strong encryption with a secure key where only a small number of people could get in on key issues, then that would be great.
But the key point that all of the experts keep stressing is: that's not reality. So, no the President's not being a "realist." He's being the opposite.
So I would just caution against taking an absolutist perspective on this. Because we make compromises all the time. I haven't flown commercial in a while, but my understanding is that it's not great fun going through security. But we make the concession because -- it's a big intrusion on our privacy -- but we recognize that it is important. We have stops for drunk drivers. It's an intrusion. But we think it's the right thing to do. And this notion that somehow our data is different and can be walled off from those other trade-offs we make, I believe is incorrect.
Again, this is not about "making compromises" or some sort of political perspective. And the people arguing for strong encryption aren't being "absolutist" about it because they're unwilling to compromise. They're saying that the "compromise" solution means undermining the very basis of how we do security and putting everyone at much greater risk. That's ethically horrific.
And, also, no one is saying that "data is different." There has always been information that is "walled off." What people are saying is that one consequence of strong encryption is that it has to mean that law enforcement is kept out of that information too. That does not mean they can't solve crimes in other ways. It does not mean that they don't get access to lots and lots of other information. It just means that this kind of content is harder to access, because we need it to be harder to access to protect everyone.
It's not security v. privacy. It's security v. security, where the security the FBI is fighting for is to stop the 1 in a billion attack and the security everyone else wants is to prevent much more likely and potentially much more devastating attacks.
Meanwhile, of all the things for the President to cite as an analogy, TSA security theater may be the worst. Very few people think it's okay, especially since it's been shown to be a joke. Setting that up as the precedent for breaking strong encryption is... crazy. And, on top of that, using the combination of TSA security and DUI checkpoints as evidence for why we should break strong encryption with backdoors again fails to recognize the issue at hand. Neither of those undermine an entire security setup.
We do have to make sure, given the power of the internet and how much our lives are digitalized, that it is narrow and that it is constrained and that there's oversight. And I'm confident this is something that we can solve, but we're going to need the tech community, software designers, people who care deeply about this stuff, to help us solve it. Because what will happen is, if everybody goes to their respective corners, and the tech community says "you know what, either we have strong perfect encryption, or else it's Big Brother and Orwellian world," what you'll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed and it will go through Congress in ways that have not been thought through. And then you really will have dangers to our civil liberties, because the people who understand this best, and who care most about privacy and civil liberties have disengaged, or have taken a position that is not sustainable for the general public as a whole over time.
I have a lot of trouble with the President's line about everyone going to "their respective corners," as it suggests a ridiculous sort of tribalism in which the natural state is the tech industry against the government and even suggests that the tech industry doesn't care about stopping terrorism or child pornographers. That, of course, is ridiculous. It's got nothing to do with "our team." It has to do with the simple realities of encryption and the fact that what the President is suggesting is dangerous.
Furthermore, it's not necessarily the "Orwellian/big brother" issue that people are afraid of. That's a red herring from the "privacy v. security" mindset. People are afraid of this making everyone a lot less safe. No doubt, the President is right that if there's "something really bad" happening then the politics moves in one way -- but it's pretty ridiculous for him to be saying that, seeing as the latest skirmish in this battle is being fought by his very own Justice Department, he's the one who jumped on the San Bernardino attacks as an excuse to push this line of argument.
If the President is truly worried about stupid knee-jerk reactions following "something bad" happening, rather than trying to talk about "balance" and "compromise," he could and should be doing more to fairly educate the American public, and to make public statements about this issue and how important strong encryption is. Enough of this bogus "strong encryption is important, but... the children" crap. The children need strong encryption. The victims of crimes need encryption. The victims of terrorists need encryption. Undermining all that because just a tiny bit of information is inaccessible to law enforcement is crazy. It's giving up the entire ballgame to those with malicious intent, just so that we can have a bit more information in a few narrow cases.
President Obama keeps mentioning trade-offs, but it appears that he refuses to actually understand the trade-offs at issue here. Giving up on strong encryption is not about finding a happy middle compromise. Giving up on strong encryption is putting everyone at serious risk.
Earlier this year Netflix surprised everybody by announcing it was expanding into 130 additional countries, bringing its total footprint to 190 markets. But alongside the announcement came the less-welcome news that Netflix was also planning to crack down more on "content tourism," or the act of using a VPN to trick Netflix into letting you watch content specifically licensed for other countries. If you take a look at what's available per country, the motivation to use a VPN to watch content not available in your market becomes abundantly obvious.
And while the press and public engaged in a lot of hand-wringing about Netflix's decision to crack down on VPN use, it really wasn't much of a problem for most VPN providers to bypass Netflix's restrictions. And indeed, if you'd been paying attention, you would have noticed Netflix basically admitting that this "crack down" wouldn't be much of one, since even the company realized it was largely futile:
"We do apply industry standard technologies to limit the use of proxies,” (Netflix chief product officer Neil) Hunt says. “Since the goal of the proxy guys is to hide the source it’s not obvious how to make that work well. It’s likely to always be a cat-and-mouse game. [We] continue to rely on blacklists of VPN exit points maintained by companies that make it their job. Once [VPN providers] are on the blacklist, it’s trivial for them to move to a new IP address and evade."
So why is Netflix engaging in a practice it realizes is largely pointless? To try and calm global broadcasting partners terrified by the fact that Netflix is re-writing the rules of global television and eroding the power of global media empires unchallenged for the better part of a generation. Netflix still needs to strike licensing deals with many of these companies, and to do so these broadcasters need to see Netflix as a partner, not a threat. So to keep these companies' executives calm, Netflix is basically giving a used-car-salesman-esque wink and saying "sure, we'll make sure your outdated regional restrictions still hold," even though Netflix's publicly-stated goal is demolishing region restrictions completely.
All of that said, Netflix's "crack down" on VPNs still has a notably negative impact on global user privacy and security. And as Dan Gillmor at Slate noted this week it's just downright annoying for the millions of paying customers that use a VPN everyday as a part of their routine security and privacy arsenal:
"No doubt this pleases the Hollywood studios, the control freaks of copyright. From this video watcher’s perspective, it’s beyond annoying. I don’t download Hollywood movies or TV shows from torrent sites. I pay, willingly, for streaming and DVD rentals and, for some special films, an outright DVD purchase. Yet I’m being punished when I stream video because I also want security. So are countless others who want to do the right thing. Tens of thousands have signed an online petition asking Netflix to reconsider."
It's unlikely that Netflix plans to do much about this in the short term. It knows most VPN providers will continue to provide workarounds for customers who know better, and is apparently willing to alienate and annoy customers unwilling or unable to switch VPN providers for the temporary, artificial benefit of its broadcaster relationships. If Netflix continues to be successful the good news will be that regional restrictions will die; the bad news is it's relatively clear the company doesn't give a damn about the repercussions as we wait the decade or longer it's going to take Netflix to actually accomplish this.
As so many have tried to frame the Apple v. FBI fight as one of "privacy v. security," the fact is that it's really about security v. security, where it really comes down to what are you more afraid of: the off-chance that someone will secretly plan a terrorist attack on an encrypted iPhone, or the much more likely issue with millions of phones being stolen or hacked into by criminals looking to swipe your private information. Apple's VP of software engineering, Craig Federighi, had now taken to the pages of the Washington Post to try to highlight this issue, and explain that the FBI and DOJ are really trying to make everyone a lot less safe.
But the threat to our personal information is just the tip of the iceberg. Your phone is more than a personal device. In today’s mobile, networked world, it’s part of the security perimeter that protects your family and co-workers. Our nation’s vital infrastructure -- such as power grids and transportation hubs -- becomes more vulnerable when individual devices get hacked. Criminals and terrorists who want to infiltrate systems and disrupt sensitive networks may start their attacks through access to just one person’s smartphone.
And he also has a good response to those, like Manhattan DA Cyrus Vance, who insist that they just want Apple "to go back" to the way they had security on phones prior to iOS 8. In other words, make everyone less secure. Their argument is that if that was okay a few years ago, why isn't it okay now. And the answer is that security holes are found over time and they make systems less and less secure. So taking a step back is not just like going back a couple of years, but much, much worse, because now lots of people know how to get past the security features:
Of course, despite our best efforts, nothing is 100 percent secure. Humans are fallible. Our engineers write millions of lines of code, and even the very best can make mistakes. A mistake can become a point of weakness, something for attackers to exploit. Identifying and fixing those problems are critical parts of our mission to keep customers safe. Doing anything to hamper that mission would be a serious mistake.
That’s why it’s so disappointing that the FBI, Justice Department and others in law enforcement are pressing us to turn back the clock to a less-secure time and less-secure technologies. They have suggested that the safeguards of iOS 7 were good enough and that we should simply go back to the security standards of 2013. But the security of iOS 7, while cutting-edge at the time, has since been breached by hackers. What’s worse, some of their methods have been productized and are now available for sale to attackers who are less skilled but often more malicious.
And, as he notes, the FBI's demands in the San Bernardino case are akin to doing the same thing to the security of iOS 8: creating a vulnerability that will almost certainly "spread around the world in the blink of an eye." It's a good, straightforward piece explaining why the FBI and DOJ's demands are so dangerous here.
Among the many questions swirling around the challenge to U.S. Magistrate Judge Sheri Pym's
Order that Apple create software to bypass the iPhone passcode screen, a matter of paramount
public interest may have been overlooked: Even if the government prevails in compelling Apple
to bypass these iPhone security features: (A) evidence for use in a criminal trial obtained in this
way will be challenged under the Daubert standard (described below) and the evidence may be
held to be inadmissible at trial; and (B) the Daubert challenge may require disclosure of Apple's
iPhone unlocking software to a number of third parties who would require access to it in order to
bring the Daubert challenge and who may not secure the new software adequately. To state that
neither consequence would be in the public interest would be an understatement in the extreme.
The Daubert challenge would arise because any proffered evidence from the subject iPhone
would have been obtained by methodology utilizing software that had never been used before to
obtain evidence in a criminal trial. The Supreme Court, in Daubert v. Merrill-Dow
Pharmaceutical-Dow Pharmaceuticals, Inc., held that new methodologies from which proffered
evidence is derived must, when challenged, be substantiated by expert scientific testimony in
order to be admissible. In Daubert, the court stated that the criteria that must be utilized when
faced with a defense challenge to scientific testimony and evidence are:
Can the methodology used to reach the expert's conclusion (the new software here)
be tested and verified?
Have the methodology and software been peer-reviewed and has the review been
published in a peer-reviewed journal?
Do the techniques used to reach the conclusion (here, to obtain the evidence) have an
ascertainable error rate?
Has the methodology used to generate the conclusion (the evidence) been generally
accepted by the relevant scientific community?
Under the Daubert standards, introduction of evidence from the iPhone, electronic
communications and data stored in the phone, would require the testimony of an expert witness
to, among other things:
establish the integrity of the data (and its reliability) throughout the chain of custody;
explain whether any person or software could modify the data coming off of the phone;
verify that the data that came off the phone as delivered by Apple and held by law
enforcement was the data that had originally been on the phone;
explain the technical measures, such as the digital signatures attached to the data, used
ensure that no tampering has occurred and their likely error rates.
Such an expert would, in preparation for his or her testimony, require access to and examination
of the software, as it is inconceivable that defense counsel would simply accept the testimony of
the Apple personnel without also demanding that their own, third-party, experts have access to
In addition, defense counsel would undoubtedly demand the right for their own third-party
experts to have access not only to the source code, but to further demand the right to simulate the
testing environment and run this code on their own systems in order to confirm the veracity of
evidence. This could easily compromise the security of the new unlocking code, as argued by in
the amicus brief filed with Judge Pym by Jennifer Granick and Riana Pfefferkorn from
Stanford's Center for Internet and Society (also covered previously by Techdirt):
There is also a danger that the Custom Code will be lost or stolen. The more often Apple must use
the forensic capability this Court is ordering it to create, the more people have to have access to
it. The more people who have access to the Custom Code, the more likely it will leak. The software
will be valuable to anyone eager to bypass security measures on one of the most secure
smartphones on the market. The incentive to steal the Custom Code is huge. The Custom Code
would be invaluable to identity thieves, blackmailers, and those engaged in corporate espionage
and intellectual property theft, to name a few.
Ms. Granick and Ms. Pfefferkorn may not have contemplated demands by defense counsel to
examine the software on their own systems and according to their own terms, but their logic
applies with equal force to evidentiary challenges to the new code: The risk of the software
becoming public increases when it is examined by multiple defense counsel and their experts, on
their own systems, with varying levels of technical competency. Fundamentally, then, basic
criminal trial processes such as challenges to expert testimony and evidence that results from that
testimony based on this new software stand in direct tension with the public interest in the
secrecy and security of the source code of the new iPhone unlocking software.
At best, none of these issues can be resolved definitively at this time because the software to
unlock the phone has not been written. But the government's demand that the court force Apple
to write software that circumvents its own security protocols maybe shortsighted as a matter of
trial strategy, in that any evidence obtained by that software may be precluded following a
Daubert inquiry. Further, the public interest may be severely compromised by a court order
directing that Apple to write the subject software because the due process requirements for
defense counsel and their experts to access the software and Apple's security protocols may
compromise the secrecy necessary to prevent the proposed workaround from becoming available
to hackers, foreign governments and others. No matter what safeguards are ordered by a court,
security of the new software may be at considerable risk because it is well known that no
security safeguards are impregnable.
The government may be well advised to heed the adage, "Be careful what you ask for. You may
just get it." Its victory in the San Bernardino proceedings may be worse than Pyrrhic. It could be
Kenneth N. Rashbaum is a Partner at Barton, LLP in New York, where he heads the Privacy and
Cybersecurity Practice. He is an Adjunct Professor of Law at Fordham University School of
Law, Chair of the Disputes Division of the American Bar Association Section of International
Law, Co-Chair of the ABA Section of International Law Privacy, E-Commerce and Data
Security Committee and a member of the Section Council. You can follow Ken @KenRashbaum
Liberty McAteer is an Associate at Barton LLP. A former front-end web developer, he advises
software developers and e-commerce organizations on data protection, cybersecurity and
privacy, including preparation of security and privacy protocols and information security terms
in licensing agreements, service level agreements and website terms of service. You can follow