Guest Editorial: Watching the watchmen
Americans must never stop watching the people watching us. It’s as vital as ever, as federal officials keep trying to exploit fear of terrorism to break down our civil liberties.
The fight between law enforcement officials and digital privacy advocates over smartphone encryption didn’t end with the Apple vs. FBI legal flap over a San Bernardino, Calif., terrorist’s iPhone. Developments in that and other cases kept coming in April. And they only underscored concerns about where all of this is heading.
Remember that in February a federal judge in Riverside, Calif., sided with the FBI and ordered California-based Apple to aid the San Bernardino investigation by finding a way to unlock the phone of the terrorist who died with his wife and fellow mass murderer in a shootout with police.
The FBI said the phone could contain valuable information about the attacks and the people involved, implying it could help to head off more attacks. Apple said that’s a risky path because disabling the privacy protections on one phone would threaten everybody’s if the method fell into criminal hands. Civil libertarians argued that the legal power law enforcement officials seek — the power to compel private companies to cooperate with them — is a power they don’t really need.
Apple appealed, but before the case could go back to court the FBI announced a third party had succeeded in unlocking the phone.
What has the news since then shown? Little that supports the FBI’s arguments.
• CBS News reported nothing of significance had been found on the terrorist’s iPhone. As U.S. Rep. Ted Lieu, D-Calif., and others have pointed out, the FBI has never cited an instance where peeking inside someone’s phone would have stopped a terrorist attack, and it doesn’t look as if it will happen this time, either.
• FBI Director James Comey said that although the software used to unlock the terrorist’s phone wouldn’t work on all iPhones, it could be used on all 5C iPhones running IOS 9 software. That’s millions of iPhones — maybe yours. This never was about one dead terrorist’s phone.
• Making the risk worse, the FBI announced that it will not tell Apple what security vulnerability was exploited to unlock the phone. Although the FBI says this is because it doesn’t know the details, it appears the bureau is dancing around a mandate for government agencies to flag encryption weaknesses so companies can fix them.
• In a second, similar case, the FBI dropped its appeal of a ruling favoring Apple after agents got the password to a Brooklyn drug dealer’s phone days before going to court. Again, the FBI was shown not to need a broad softening of security to do its job.
One piece of good news is the defeat, in a California Assembly committee, of a bill to require all smartphones in the state to have built-in “back doors” for the government to look through.
But the fight goes on.
Unresolved appeals in the FBI vs. Apple cases leave rulings tied 1-1. Keep your eyes open.