Privacy vs. Security: Where Should We Draw the Encrypted Line in the Sand?

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Source:   —  April 07, 2016, at 4:58 PM

If there is a tipping point when the protection of consumer privacy should yield to the needs of a criminal investigation, where's it? Few will dispute the obvious cases where the Constitutional rights of a citizen are disrupted by a judge who knows (or at minimum has access to) the valid precedents informing the decision to suspend a citizen'south right to privacy.

Privacy vs. Security: Where Should We Draw the Encrypted Line in the Sand?

The recent Game of Phones between the FBI and Apple underscored an area in our jurisprudence that's screaming for more clarity. If there is a tipping point when the protection of consumer privacy should yield to the needs of a criminal investigation, where's it?

Few will dispute the obvious cases where the Constitutional rights of a citizen are disrupted by a judge who knows (or at minimum has access to) the valid precedents informing the decision to suspend a citizen'south right to privacy. A court-ordered look for warrant trumps those rights, for a defined period of time, and it can happen fairly quickly when a member of the judiciary believes there is excellent and sufficient reason for it. Sometimes, in instances involving probable cause and easily visible physical evidence, the law permits on-the-spot access.

The latter scenario came into play with the phone belonging to San Bernardino shooter Syed Rizwan Farook, an iPhone 5C running iOS nine. Law enforcement executive had every reason to believe there could be time-sensitive information on the device -- information that very well might rescue lives. They attempted to access that information through Farook'south iCloud account. But, in the process, they made a mistake. They reset the password remotely. When they did that, they slice off a way into the device, an auto-backup, which may have been possible had the phone been transported and connected to a Wi-Fi network that it recognized--in this case, the shooter'south residence wireless network. There was only one way to discover out if that'd have worked, and it disintegrated when a law enforcement official reset that password.

Locked out, the government requested Apple'south help. Apple CEO Tim Cook refused to allow that assistance on the grounds it'd compromise consumer privacy and set a risky precedent. The FBI secured a Ct order demanding Apple unlock Farook'south iPhone, and still the company refused to comply, which begged the question: Should the government be allowed special access to information that's protected by encryption or any other method designed to defend user privacy?

In October two thousand fifteen, the Obama administration had decided it wasn't a excellent idea to legislatively force decryption at the behest of law enforcement. "The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry," FBI director James B. Comey told the Homeland Security and Governmental Affairs Committee. Not long after that announcement, the San Bernardino shooting caused the Justice Dept to do a one hundred eighty -- getting a Ct to order Apple to decrypt. The case made daily headlines. Numerous briefs were filed by all stripe of organization on both sides of the issue. Then the action became moot because -- reportedly with the assistance of a third-party technology firm -- the FBI wormed its way into the phone.

But on the other side of the FBI'south successful workaround with Farook'south iPhone 5C lies a valid shadowland. This pivotal question about consumer privacy still hasn't been addressed, because the FBI successfully breached the phone without Apple's help.

What Now?

When it comes to encrypted devices, can there be special access afforded to the government, in only extreme cases, without weakening the privacy protections afforded by encryption to consumers?

Digital undertaking probably won (by a smidge) in the battle over access to Farook'south iPhone because Apple wasn't required to allow what could've amounted to a permanent backdoor to law enforcement. The FBI said this week that it'd assistance local law enforcement agencies decrypt information on devices without saying that it'd specifically create available to them the means used to crack the San Bernardino shooter'south phone. You can be sure that when Apple closes the door on the FBI'south exploit, there will be an announcement and the fight over law enforcement access to encrypted information will resume in earnest.

It's not breaking news in the information security community that the FBI has had a Tor exploit for a while now. Tor is an anonymizing network that allows people to visit websites without being traced. There are as many legitimate reasons to utilize it as there are illegal ones -- among the latter category being the trafficking of baby pornography, which was the reason the FBI developed the tracker malware used to dispose and arrest people who convey illegal images. What's not known: how many other presumed secure platforms have glass walls for law-enforcement eyes only?

I think it'south also worth wondering aloud if the FBI always knew there was a hack to obtain in Farook'south iPhone. Were that the case, the FBI motion in this case would've been less about finding a way into the phone and more about two-stepping around the Obama administration'south previously stated position to continue conversations and not go to war with Silicon Valley over decryption legislation.

In February, Tim Cook explained to ABC World News Tonight that the FBI had essentially asked him to create "the software equivalent of cancer." The tension between selling privacy and having it compromised by valid means isn't an simple one to navigate, but in this war of words and ideology, we necessity to do a whole lot better than we've so far.

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