How the Sides Line Up in the Apple Encryption Fight

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After Apple’s refusal to comply with a court order to help the FBI access encrypted content on an iPhone owned by one of the San Bernardino shooters, tech companies and presidential candidates have spoken out on the controversy over digital encryption. Michaela Rehle/Reuters

This article first appeared on the Council on Foreign Relations site.

Much has been written in the past 48 hours on Apple's refusal to comply with a federal order to assist the FBI access the encrypted contents on a iPhone 5C owned by Syed Rizwan Farook, one of the deceased perpetrators of the San Bernardino terrorist attack.

Here's a quick recap of the events to bring you up to speed:

On February 16, a federal magistrate in California ordered Apple to assist the FBI unlock and decrypt Farook's phone. In siding with the U.S. government, the magistrate accepted the Department of Justice's interpretation of the All Writs Act, a 200-year old law that allows courts to compel a person to do anything to comply with an order.

Specifically, the FBI is looking for Apple to develop a software that will:

  • Disable an iPhone's ability to automatically wipe its contents if an incorrect password is provided 10 times;
  • Allow the FBI to run software that will attempt to guess the iPhone's password–a technique known as brute force; and
  • Disable software features that would introduce delays after every password attempt.

On February 17, Apple published an open letter vowing to oppose the order on two grounds:

  1. Complying with the order effectively requires Apple to build malware to defeat the security features of its own products, exposing the security and privacy of its users if a third party got its hands on the malware.
  2. Complying with the order would set a bad precedent by using similar orders to "demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone's microphone or camera without your knowledge."

Here are some of the reactions in the…

Technical community:

Tech companies:

  • Google CEO Sundar Pichai said in a series of tweets that the order could set "a troubling precedent."
  • WhatsApp CEO Jan Koum shared Cook's letter on Facebook and gave the company his full support, noting that "our freedom and our liberty are at stake."
  • The Information Technology Council, an industry group that represents Dell, Facebook, Google, and others, expressed "worry" at the broader implications of "requiring governments to disable security features."
  • Reform Government Surveillance, an industry group comprised of AOL, Apple, Google, Facebook, Evernote, Yahoo, LinkedIn, Microsoft, Twitter and Dropbox, issued a statement saying that "companies should not be required to build in backdoors to the technologies that keep their users' information secure."

Think tank community:

  • Max Boot disagrees with Apple's position, calling it "sanctimonious and misleading."
  • Robert Chesney at Lawfare notes that the encryption and "going dark" battle is now moving from Congress to the courts.
  • Ben Wittes at Lawfare is saying: "I told you so."
  • Matt Mayer at the American Enterprise Institute argues that absent Congressional action on encryption, Apple is right to fight the magistrate's order.
  • Julian Sanchez at CATO argues that the Apple-FBI case is all about the precedent it set.s

Political establishment:

  • Congressman Ted Lieu (Democrat, California) issued a press release supporting Apple, arguing that the court is effectively asking a private sector company to be an arm of law enforcement.
  • Congressman Justin Amash (Republican, Michigan) tweeted his support for Apple.
  • Senator Tom Cotton (Republican, Arkansas) said that Apple "chose to protect a dead ISIS terrorist's privacy over the security of the American people."
  • Senator Ron Wyden (Democrat, Oregon), who has clashed with the government on encryption, said that the FBI's move could "snowball around the world" and give "Russia and China a blueprint for forcing American companies to create a backdoor."
  • Senator Ron Johnson (Republican, Wisconsin) expressed concern that "using the judiciary to require Apple to build a 'master key'...could open a Pandora's box with unforeseen effects."
  • Richard Burr (Republican, North Carolina) and Dianne Feinstein (Democrat, California), the chair and ranking members of the Senate Intelligence Community, sided with the FBI.

2016 campaign:

Adam Segal is the Maurice R. Greenberg Senior Fellow for China Studies and Director of the Digital and Cyberspace Policy Program at the Council on Foreign Relations.

How the Sides Line Up in the Apple Encryption Fight | U.S.