Apple vs. the FBI: Inside the Battle Snowden Calls "The Most Important Tech Case in a Decade"

February 18, 2016
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Alex Abdo

staff attorney with the National Security Project at the American Civil Liberties Union.

A major debate over privacy and online encryption has erupted after the computer giant Apple announced it will resist a court order to help the FBI break into an iPhone recovered from one of the San Bernardino shooters. Citing an 18th century law, federal prosecutors requested a court order to compel Apple to assist the investigation in unlocking the phone of Syed Rizwan Farook. In December, Farook and his wife killed 14 and injured 22 others in San Bernardino. On Tuesday night, Apple CEO Tim Cook published an open letter to customers announcing his company’s decision to fight the court order. "Up to this point, we have done everything that is both within our power and within the law to help them," Cook said. "But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone." We speak to Alex Abdo, staff attorney at the National Security Project at the American Civil Liberties Union.


TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A major debate over privacy and online encryption has erupted after the computer giant Apple announced it will resist a court order to help the FBI break into an iPhone recovered from one of the San Bernardino shooters. Federal prosecutors requested a court order, citing an 18th century law, to compel Apple to assist the investigation into unlocking the phone of Syed Rizwan Farook. In December, Farook and his wife killed 14 and injured 22 others in San Bernardino. The two were killed in a shootout with police. FBI Director James Comey recently revealed the agency has been unable to access data on Farook’s phone.

JAMES COMEY: So it is a big problem for law enforcement, armed with a search warrant, when you find a device that can’t be opened, even though the judge said there’s probable cause to open it. As I said, it affects our counterterrorism work. You know, with San Bernardino, a very important investigation to us, we still have one of those killers’ phones that we have not been able to open. And it’s been over two months now, we’re still working on it.

AMY GOODMAN: On Tuesday night, Apple CEO Tim Cook published an open letter to customers announcing Apple’s decision to fight the court order. Cook wrote, quote, "We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications," he said.

Tim Cook went on to write, "Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone," he said.

To talk more about the dispute between Apple and the FBI, and the larger debate over encryption and cybersecurity, we’re joined by Alex Abdo. He’s staff attorney at the National Security Project at the American Civil Liberties Union.

Welcome to Democracy Now!, Alex.

ALEX ABDO: Thanks for having me.

AMY GOODMAN: So, will the FBI, will the government, take a bite out of the Apple?

ALEX ABDO: That is the question. And I think that the courts are going to ultimately side with Apple, because what the government is asking for in this case is a bridge too far. It’s an unprecedented demand that Apple not just give the government information it has, but that Apple write software that hacks into one of its users’ phones. And that is an unprecedented authority that the government seeks, and it’s not an authority that you can limit to just this case. This is not just about this one phone, it’s about every phone.

AMY GOODMAN: So, explain how it works. And is it true that why the government can’t break into it is because of a change that Apple made just, what, in 2014?

ALEX ABDO: Well, this is an old phone, so it’s a little bit unclear, you know, to people on the outside, the relationship between this phone and the more recent changes Apple has made. But basically what’s going on is the phone is locked using a passcode, and there are protections built into the device to prevent people from trying, you know, every password under the sun to try to break into it. And the government wants Apple to write software that would hack those protections, that would undermine them, so that the government can break into the phone.

And that’s what’s different about this case than anything before that the government has asked from the tech companies, because the government has, rightfully, asked in the past for companies to hand over information they have that’s important to their investigations. And Apple and other companies have complied with those requests. But this time they’re asking for the company to build a backdoor. You know, Apple’s job is to secure the data of its customers. These are customers who entrust their very private information to the phones made by Apple. Instead, the government wants Apple to break those security features. And that’s a dangerous precedent that the government is trying to set.

AMY GOODMAN: On Wednesday, White House Press Secretary Josh Earnest rejected claims the government is asking Apple to create this backdoor to its products.

PRESS SECRETARY JOSH EARNEST: I think it is important to note here, Josh, exactly what the Department of Justice is requesting. They are not asking Apple to redesign its product or to create a new backdoor to one of their products. They’re simply asking for something that would have an impact on this one device. And, you know, again, for the merits of that argument and why the Department of Justice has concluded that that’s important, I’d refer you to them.

Obviously, the Department of Justice and the FBI can count on the full support of the White House as they conduct an investigation to learn as much as they possibly can about this particular incident. The president certainly believes that that is an important national priority, but it’s ultimately the responsibility of these independent law enforcement professionals to do that. So, and that’s—and that’s what they’re trying to do.

AMY GOODMAN: So that’s White House spokesperson Josh Earnest. Well, in his letter to customers, Apple’s CEO, Tim Cook, said, "The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers—including tens of millions of American citizens—from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe." So how do you compare, Alex Abdo, the safety of, you know, millions of iPhone users with the safety of people? That’s what the government is saying, you know, that this whole group of people were gunned down in San Bernardino, and the government wants to find out, you know, who was involved, is there anyone else.

ALEX ABDO: Sure. Well, I think that presents a false choice. The government has an extraordinary array of tools at its disposal to investigate terrorists, like the shooters in San Bernardino, and the government should be using those tools. You know, technology has made our lives more transparent than they’ve ever been in the past. They’ve allowed government access to information that never existed before. What Apple is trying to do with the iPhone is to restore some sense of balance to user privacy. And the government now wants Apple to run roughshod over even that last protection that Apple is building into its devices. And that, I think, is a bridge too far, because that affects us all. And cybersecurity, as the same intelligence officials who are criticizing Apple have warned us, is one of the looming disasters of the 21st century. We are all very vulnerable when it comes to our devices, and so companies like Apple should be working to fix those holes, not create new ones.

AMY GOODMAN: In December, Apple CEO Tim Cook spoke to Charlie Rose of 60 Minutes and defended his company’s stance on encryption.

CHARLIE ROSE: In the government, they say it’s like, you know, you have a search warrant, but you can’t unlock the trunk.

TIM COOK: Here’s the situation, is on your smartphone today, on your iPhone, there’s likely health information, there’s financial information, there are intimate conversations with your family or your co-workers, there’s probably business secrets. And you should have the ability to protect it. And the only way we know how to do that is to encrypt it. Why is that? It’s because if there is a way to get in, then somebody will find the way in. There have been people that suggest that we should have a backdoor. But the reality is, if you put a backdoor in, that backdoor is for everybody, for good guys and bad guys. ... I don’t believe that the trade-off here is privacy—

CHARLIE ROSE: Versus security.

TIM COOK: —versus national security. I think that’s an overly simplistic view. We’re America. We should have both.

AMY GOODMAN: So that is the CEO of Apple. During a recent event hosted by The Wall Street Journal, General Michael Hayden, former director of the CIA and NSA, says he disagrees with FBI Director James Comey’s argument that the government should have backdoor access to encrypted files.

MICHAEL HAYDEN: The issue here is end-to-end, unbreakable encryption. Should American firms be allowed to create such a thing? And you’ve got Jim Comey on one side saying, "I am really"—

JOHN BUSSEY: FBI director.

MICHAEL HAYDEN: Sorry, yeah, the director of the FBI. "I am really going to suffer if I can’t read Tony Soprano’s email or if I’ve got to ask Tony for the pin number before I get to read Tony’s emails." And Jim Comey makes that—makes that complaint. And I get it. That is right. There is an unarguable downside to unbreakable encryption. On the other side is the argument—question you ask is: On balance, OK, is America more or less secure with unbreakable, end-to-end encryption, regardless of whether Jim can read Tony’s emails?

JOHN BUSSEY: You were the head of the NSA. What’s your position?

MICHAEL HAYDEN: I think Jim Comey is wrong. And Jim, Jim is big—you know, go back, run the tape back about seven or eight minutes. Remember when I told you about who the main body is? Jim’s logic is based on the belief that he remains the main body and that you should accommodate your movements to the movements of him, which is the main body. And I’m telling you, with regard to the cyberdomain, he’s not.

AMY GOODMAN: That was General Michael Hayden, former director of the CIA and NSA, in a recent event hosted by The Wall Street Journal. Alex Abdo, this—is there a division within the government over encryption?

ALEX ABDO: There is. And it really is—it comes down to the FBI on one side, and just about every cybersecurity professional on the other side, which is really a remarkable aspect of this debate. There’s essentially a consensus, uniformity, when it comes to the people who are best at securing mobile devices, at securing our communications, that it is a disastrous idea to build into these products the backdoors that the director of the FBI wants.

AMY GOODMAN: Talk about how it works. I mean, you have—for people who have the iPhone, you also have the iCloud.

ALEX ABDO: Mm-hmm.

AMY GOODMAN: And if you know, with the San Bernardino shooters, is it—stuff that’s in the iCloud, yes, the government has access to.

ALEX ABDO: That’s right.

AMY GOODMAN: But if they do not allow it to go onto the iCloud, if it’s just on the phone, that’s locked? Is that true?

ALEX ABDO: It’s true as a general matter. When you have—on your phone, if you have a passcode enabled, then, in theory, everything on it should be protected by strong encryption that Apple has built into their product. This is really no different than what business—you know, businessmen and women have benefited from on their laptops for many, many years. There is encryption built into those laptops so that if you accidentally lose your laptop, all of your business’s secrets are not exposed. Apple has simply brought that pretty mainstream protection to the mobile—to mobile devices, which is now where people are storing most of their private information.

AMY GOODMAN: I mean, and people find the iCloud so incredibly convenient because if somehow they lose or have their phone stolen, just get another one, and then they just download everything. But if you do that, you’re much more vulnerable.

ALEX ABDO: Well, you’re subject to legal demands to Apple. And, you know, that’s why I think the government is presenting a false choice. It’s not about access to everything versus access to nothing. It’s about coming up with the right balance between securing people’s information and making sure law enforcement can do its job.

AMY GOODMAN: If Apple were to agree—though it looks like they’re not now, but they’re going to court—what does this mean internationally?

ALEX ABDO: Internationally, it means that Apple will have a very, very hard time resisting similar demands from repressive regimes. If Apple allows the government to force it to build one of these backdoors, every government in the world is going to come knocking. And it’s not just going to be Apple, and it’s not just going to be iPhones. It’s going to be every major American tech producer. It’s going to be tablets. It’s going to be laptops. It’s going to be all of the smart devices that we now have on our phones that have built-in video cameras or built-in microphones. It will allow the government to turn every American company into a tool of government surveillance. And I think that’s a bleak future, particularly when you think about the sorts of countries that are going to come knocking on these American tech companies’ doors in the future.

AMY GOODMAN: So what’s going to happen here? Explain the court process right now. And explain the companies—many companies are siding with Apple, like Google, Alphabet. But are there companies that are siding with the government?

ALEX ABDO: I’m not aware of a single company that has. And this is not the first time that this debate has come up. You know, as you’ve pointed out, this debate has been going on for months now. And there was a similar case, although not quite as contentious, in New York raising similar issues. And in that case, the same happened as here. Tech companies and—

AMY GOODMAN: Explain that case.

ALEX ABDO: It was a case where the government wanted Apple to help it unlock a phone. Now, it didn’t involve the San Bernardino shooters, and so it didn’t get the sort of media attention that this case has gotten. But it involved a very similar request. In the San Bernardino case, the government has gone a step further. They want Apple to write specific software, which is, you know, a different sort of step and an unprecedented one. But the legal issues are largely the same.

And what will happen next is that Apple has a few days to respond. There will be any number of tech companies and civil rights organizations lining up behind Apple, including the ACLU. And then a court will decide. And this will go through the court process.

AMY GOODMAN: This is a 226-year-old law they are using? An 18th century law?

ALEX ABDO: That’s right. It’s called the All Writs Act, and it was designed as a kind of fill-in power for the courts to allow them to give meaning to other orders. And it’s been used in the past to allow the government to get access to information that people have in their possession, so that they can turn it over in response to a valid search warrant. What it has never been used for, up until recently, is forcing companies into governmental service as government spies.

AMY GOODMAN: So here we have a situation where the government wants to know something.


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