February 26, 2016–This is major league serious business. I might observe how tiresome it is to have to go back again and again to these issues over government access to private communications of citizens, except that the issue is way too important to be left to government officials. Like the hammer seeing only nails, if you’re the FBI every telephone is a potential gateway to a crime (so you need them all). Weren’t we in this exact same place two years ago with the National Security Agency? Let’s review the bidding.
James B. Comey, the FBI director, won big points in my book a decade ago when he stood up to White House thugs trying to strongarm the Justice Department over the NSA blanket surveillance program Stellar Wind. But he’s blown it all now–and is plenty deep in the Big Muddy–with his dogged bids to saw out a back door into everyone’s private communications. In The Family Jewels I documented at some length the government excesses this kind of thing leads to. Edward Snowden, practically moments later, revealed NSA programs–starting with Stellar Wind but including a lot more–that were doing just that.
The NSA used to rely upon the FBI as front man. That is, if NSA wanted some access it would prevail upon FBI to open an investigation and make applications to the FISA Court in its own name. After the judges approved the warrant the agencies would share the take between themselves.
In one sense the current mess about access to the San Bernardino murderers’ phone is a replay of that. The ink was hardly dry on the NSA’s stuck pig squeals that denying blanket eavesdropping would emasculate it–followed by the tech companies’ promises they would add encryption–and the cosmetic “reforms” President Obama enacted–before the FBI started complaining about its iphone access. (Or, more properly, about its diminished ability to wiretap.) Director Comey began this drumroll long before the San Bernardino murders. To say, as he still did yesterday in front of a congressional committee at an annual threat hearing, that this is all about one telephone, just boggles the mind.
It is possible that Comey (and the FBI) really believe this is just about one phone. Naturally, that strains credulity, but of course this is the FBI, the government agency which spent multi billions of dollars and took over ten years to fail at the simple task of getting all of its employees onto a common computer network.
The bit from Comey about The Bureau not being able to look itself in the mirror, etc., if it could not give the victims’ survivors good answers is well-meant but it is devised to pull at heartstrings. FBI does not need iphones to obtain the evidence it needs for good answers–that it has already collected. The San Bernardino murders are past us, so no current law enforcement objective obtains. Even the intelligence potential of these iphones is minimal. These were not people talking to ISIS strategic commanders, nothing beyond minutiae stands to be revealed. There is no trial or indictment for which to collect evidence either.
The only purpose for which this access is relevant is for the future–which means, the future being unpredictable, and all–the potential for access to every iphone.
FBI mavens claim their demand for access to the San Bernardino phone is unique and can go no further based on the notion that Apple can write a “back door” (datamining) program and this would be installed in just the single phone by use of a maintenance access code unique to that phone. The Bureau seemingly does not understand that all iphones are identical, their operating systems also, and the back door program would be too. The only protection left to the individual is the maintenance code. At the point in the future when any of this becomes relevant, the precedent for tech companies yielding their maintenance codes to government inquisitors will already have been set by the “San Bernardino phone” case.
You can see how insidious this is. It is Apple executive Ted Cook, not the FBI who is right–this is about the future, not the San Bernardino case. That’s the only way it makes sense, and the only explanation that accounts for James Comey’s drumbeat about encryption that starts from before the San Bernardino murders.
This is the place where I have to disagree with columnist David Ignatius of the Washington Post, who writes in today’s issue that “the basic problem” with Apple’s position is that “a private company and the interests of its customers should prevail over the public’s interest as expressed by our courts.” Ignatius is an experienced and acute observer of the security agencies, but here he carries their water.
Here Apple (and its customers) are only surrogates for the public. It is the public that is the real target. That Apple stands in the place of the citizenry is purely a function of the type of hi tech equipment involved here. As for the expressions of our courts, Ignatius knows better. Courts, in particular at the district level, have as much resilience for standing against national security claims as ice cubes in an oven. That FBI would obtain a court order was perfectly predictable. To represent that as a considered judgment is short-sighted. One need only look at the judgments of our supposedly conscientious Foreign Intelligence Surveillance Court to see the legal system stretching ancient precedent to justify modern intrusiveness.
The intrusion is a Constitutional matter, and the answer has been there all along in the Bill of Rights. The Fourth and First Amendments prohibit intrusive surveillance, individual or mass, in any form at any time. End of story.
Or not. It won’t be the first time myopic self-interest or security hysteria have breached the walls of constitutional rights. The wise citizen will take measures to avoid intrusive surveillance. For me, I am inclined to take my typewriters out of storage. I understand the German intelligence service BND is doing the same. Decades ago the NSA spent millions (probably now billions) figuring out how to recover the text printed with a typewriter ribbon. I bet you they have now lost that skill they once had.