It all started so “harmless.” The Federal Bureau of Investigation (FBI) wanted to access the information of a person being investigated for mass murder so, the FBI said, it could try to prevent more terrorist attacks.
A couple months later this has morphed into a situation where the FBI is offering to help police departments across America access secured information of any electronic device connected to criminal investigations and where members of the United States Senate are moving forward with legislation to force technology companies to give the government access to secured, including via encryption, electronic devices information.
First, the FBI’s bumbled handling of an iPhone connected to a mass killing in San Bernardino provided an opening for the FBI to seek a precedent-setting court order to require Apple to assist the government in overcoming the phone’s security. Rather convenient, one might say, for a government agency determined to search and seize with the minimum possible constraint. Then, when Apple resisted the court’s order that was obtained ex parte (without Apple being afforded an opportunity to present its opposing arguments), the FBI dropped the case, claiming it found people who helped it bypass the iPhone’s security. This is after the FBI had told the magistrate judge that the FBI needed Apple’s help to accomplish the task.
Now, a “law enforcement source” has told CBS News that “so far nothing of real significance has been found” on the San Bernardino iPhone. This latest development should come as no surprise. There were plenty of indications early on that the San Bernardino iPhone likely had very little to no information that would be helpful for pursuing the mass murder investigation or for protecting people from any potential terrorist attack.
Jenna McLaughin summed up in a February 26 The Intercept article what seemed to be the FBI’s real motivation in seeking the court order: “It’s becoming increasingly clear that law enforcement doesn’t really think there’s any important data on San Bernardino killer Syed Rizwan Farook’s iPhone and that it has more precedent-setting value than investigative value.” McLaughlin then proceeds in her article to detail several reasons to believe there would be little to no investigative benefit gained from overcoming the iPhone’s security. Among other reasons, McLaughlin notes that the FBI already had “plenty of phone data, none of which indicated any overseas terror connection;” that the local police chief had said there was “a reasonably good chance that there is nothing of any value on the phone;” and that the iPhone was Farook’s employer-owned work phone that — unlike his laptop computer and two personal phones — he had not bothered to demolish.
The FBI’s effort to force Apple to overcome the San Bernardino iPhone’s security was never about one phone of one terrorist. Instead, it was about expanding the ability to overcome privacy protections of electronic devices via the courts after the executive branch had tried and failed in its effort to help bring through Congress legislation that would force companies to provide the government with “backdoor” access to electronic information.
As time goes on, the veneer is wearing away. Investigators, including at the American Civil Liberties Union, are revealing the great breadth of the FBI’s effort to obtain court orders against Apple and other technology companies, as well as that such efforts appear more likely to arise from victimless drug crime investigations than from terrorism or murder investigations.
Also, just four days after FBI Director James Comey had claimed in a February 21 press release that “The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message,” Comey admitted before the US House of Representatives Intelligence Committee that the San Bernardino iPhone court proceedings “will be instructive for other courts.”
Then, shortly after the FBI announced its success at breaching the San Bernardino iPhone’s security without Apple’s assistance, the FBI sent a letter to police departments across America promising to help them overcome privacy protections on electronic devices. Considering that Manhattan, New York District Attorney Cyrus R. Vance, Jr. claimed in February that his prosecutors alone have 175 iPhones with information they want to access but cannot because of encryption, there is likely much demand for the FBI’s assistance
Meanwhile, the legislative push that the Obama administration publicly abandoned in the fall of 2015 appears to have new energy. On Wednesday, Senate Intelligence Committee Chairman Richard Burr (R-NC) and Vice Chairman Dianne Feinstein (D-CA) released draft legislation intended to empower courts to require Apple and others to, as Feinstein puts it, “render technical assistance or provide decrypted data” in criminal investigations.
While Feinstein uses the word “terrorists” three times in her three-paragraph introduction to the draft legislation on her Senate website, there is no doubt that her goal, like the FBI’s, is for the US government to be able to exercise sweeping power to overcome privacy protections on electronic devices, and not just for terrorism investigations. Talk of terrorism is a persuasive way of advancing the privacy-stripping effort by using people’s fear to overcome their desire for liberty.
The effort to ensure the US government can exercise expansive powers, including even the conscription of technology companies, to overcome security keeping electronic information private has taken some twists and turns in the last few months. But, make no mistake: An attack on liberty and privacy is moving forward in the courts and in Congress.
