WASHINGTON — In 1993, the United States government proposed adding a piece of hardware to telephones that would give it access to encrypted communications with a court-approved wiretap. Called the “Clipper chip,” the technology was like an encryption key that the government could keep in its back pocket.
The government saw the chip as vital to ensuring national security amid an increasingly complex technological landscape, but technology companies protested and eventually the idea was shelved.
More than two decades later, the government has renewed its call for a key.
The Justice Department filed a motion last month compelling Apple to build a back door for the government to access data from the iPhone owned by Syed Rizwan Farook, one of the perpetrators of the mass shooting in San Bernardino, California. The government is asking Apple to develop an operating system that would allow the FBI to crack the phone’s passcode without the data being deleted after too many password attempts, and the company is resisting.
Like the Clipper chip, the Apple decision has the potential to be a seminal moment for the country to set a balance between privacy and cybersecurity. In a statement published last month, FBI director James Comey highlighted the enormity of this question, tasking the American people with making the ultimate decision.
“That tension should not be resolved by corporations that sell stuff for a living,” he said in the statement. “It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
The country last grappled with the issue in 2013, when whistleblower Edward Snowden revealed the sweeping surveillance powers afforded to the government in the USA PATRIOT Act, signed into law shortly after 9/11. Among other things, the Snowden documents revealed the National Security Agency was collecting and storing millions of Americans’ metadata — the information related to a phone call, such as the caller and receiver’s numbers and how long the call lasted.
Amid anger over the Snowden revelations in 2014, a survey by Pew Research Center found that 47 percent of Americans were more concerned that the government’s policies to protect the country from terrorism had gone too far than that they had not gone far enough.
However, when asked the same question following the San Bernardino attacks in December, Pew found that 56 percent of Americans were more concerned that the government’s anti-terror policies had not gone far enough.
In a letter to Apple CEO Tim Cook in support of building the backdoor, Mark Sandefur, father of one of the San Bernardino shooting victims, wrote that the phone should be unlocked because it would be irresponsible to leave stones unturned in the investigation.
But in an interview with NPR, San Bernardino Police Chief Jarrod Burguan said “there is a reasonably good chance that there is nothing of any value on the phone. What we are hoping might be on the phone would be potential contacts that we would obviously want to talk to.”
As a case that could help set the standard for government access to encrypted information, some experts worry the highly charged context for the case will help set the wrong legal precedent. The specter of another attack like San Bernardino has colored the case, injecting fear and emotion into what should be a sober analysis of the situation, said Hal Abelson, a computer science professor from the Massachusetts Institute of Technology, who helped author a paper published in July about government access to encrypted data.
Abelson said less dramatic situations might raise different ethical questions.
“How about for a divorce case?” he said. “Why shouldn’t every divorce lawyer in the country start subpoenaing Apple because they want to get access to stuff on your spouse’s phone?”
Although the FBI asserts that accessing Farook’s phone could help protect Americans from future terrorist attacks, some tech and legal experts say the backdoor would put American cybersecurity in danger by creating a work-around to get to previously data. Contrary to Comey’s hope that Americans weigh in on the balance between privacy and security, others aren’t so sure the general public is equipped to make such a decision in a case filled with such technological nuance.
Aside from threats such as identity theft and computer viruses, not all Americans are familiar with the severity and scope of potential cyberattacks — for instance, that a hacker can manipulate a car’s brake system or a diabetic’s glucose monitor.
Shahid Buttar, director of grassroots advocacy at the Electronic Frontier Foundation, said a “technological illiteracy” among the public has allowed the government to play on their fear of terrorist threats.
Without fully understanding the consequences of Apple creating a backdoor – an access point to devices created to be impenetrable, Americans tend to weigh the threat of terrorist attacks more heavily, he said.
In a Pew survey from last month, 51 percent of respondents said Apple should unlock Farook’s iPhone, while 38 percent said it should not. But Buttar said many Americans don’t understand that this battle is about more than one iPhone: Apple creating a backdoor would create a legal precedent and technological implications that would affect the security of every iPhone, he said.
If the court were to rule in the government’s favor, countries such as China and Russia might make the same demand of Apple, said Julian Sanchez, a senior fellow at Cato Institute, a libertarian think tank. Without understanding the vulnerabilities the government wants Apple to create, the case may strike Americans as a simple issue of privacy. Speaking to the House Judiciary Committee earlier this month, Comey testified that the government’s constitutional right to conduct a limited search in criminal cases must transfer to electronic evidence, saying the Founding Fathers “wouldn’t have imagined any box or storage area that couldn’t be entered.”
But Sanchez said the larger consequence of the backdoor is related to data security, not the Fourth Amendment.
“The issue here isn’t whether a dead terrorist has a privacy right not to have his government-issued phone searched,” he said. “It’s whether Apple has a right to say, ‘We’re not government employees, we’re not your personal hacking service.’”
Just as technology companies resisted the advent of the Clipper chip, Apple — backed by tech mammoths such as Facebook and Microsoft — is making it difficult for the government to gain the access it wants to encrypted communications. But to Abelson, who was active in the initial debate in the ‘90s, the cybersecurity threats posed by a built-in backdoor now are much worse as the number of systems using encryption have multiplied and people’s reliance on vulnerable digital networks has been magnified.
