Thinking about FBI vs. Apple?
Think about this: In the nothing new under the sun department, over two decades ago we were debating the merits of the ‘Clipper Chip‘ that would have permitted the NSA to eavesdrop on encrypted communications. (The NSA was nervous about the possibility of stuff being kept beyond its reach after the development of the idea of public key/private key encryption, popularized by RSA and PGP.) In brief, the idea was that the federales were going to mandate that all devices have a chip that would allow individuals and businesses to encrypt data but that would accommodate a key held in escrow by the government that would be able to decrypt data when the government needed to do so. (This was eventually deep-sixed due a combination of technical problems and public outcry against a government-controlled back door.) Check out the linked long read from the NY Times Sunday Magazine (June 1994) for some fascinating background on the Clipper Chip and encryption.
One of the justifications offered for the project at the time: Wouldn’t you want to be able to stop a terrorist from setting off a nuclear device in the World Trade Center? Well, the federales apparently had access to unencrypted chatter leading up to 9/11 and failed to figure out what it meant. Holding encryption super-keys wouldn’t have helped. The broader point is that the law-enforcement focus on unlocking encrypted data is perhaps misplaced.
Will strong encryption mean that some bad guys get to keep secrets? Yes. But as proponents of encryption said in the ’90s — and as Tim Cook said in a recent Time magazine interview — if the US tanks strong encryption the rest of the world will take up the slack and we will ultimately be less secure, not more secure.
The unhackable encrypted “phone” was developed in the 90’s — PGPfone — enabling encrypted voice conversations between computers before there was a VOIP standard. The FBI vs. Apple fight is not a new one, and the government perspective has not prevailed even when the federales were fully behind it with development efforts, not just enforcement efforts.
Tim Cook says Apple will abide by a court order (the court is scheduled to hear arguments Tuesday) and the company has rescheduled its big product announcement for Monday), but he urges a legislative solution to the problem — not reached in the heat of the moment, but based on the deliberations of a study commission.
Could such a solution be reached? Given the history, and given the polar opposite perspectives of the parties to the discussion, it seems hard to imagine.
The Harlow Group LLC
Health Care Law and Consulting