Congress urged to address encryption issue once and for all

Congress has to act on encryption or the issue could bounce around courts across the country for years to come, a leading privacy expert warned ahead of a crucial hearing on the dispute between Apple and the FBI.

The two sides, involved in an increasingly rancorous dispute over attempts to access a phone used by one of the San Bernardino shooters, are due in a California federal court for an oral hearing on March 22.

In filings ahead of the hearing, Apple claimed the “Founders would be appalled” by the actions of the FBI, which in turn accused the tech company of attempting to corrode the Constitution.

U.S. Magistrate Judge Sheri Pym ordered Apple  to write fresh code to override Syed Farook's iPhone 5c, allowing law enforcement access to its data. The March 22 hearing is part of a review of that order.  The company claims the FBI cannot use a more than 200 year old act, the All Writs Act (AWA), to force the company to do so.

 A recent judgment delivered in a New York federal court appears to bolster the company’s argument. It centered on the Drug Enforcement Agency’s attempts to access the phone of a drug dealer.  Magistrate Judge James Orenstein ruled that, under the AWA, Apple had no obligation to assist the government’s investigation because it had little relationship to the criminal conduct and to do so would impose an unnecessary burden on the company.

The New York court found the AWA was not a good basis for requiring Apple to decrypt that phone, said Peter Swire, Professor of Law and Ethics at Georgia Tech.  

“It’s a very general statute to help the government assist in criminal cases,” said Swire, a member of President Obama’s Review Group on Intelligence and Communications, a five person panel set up following the Edward Snowden revelations of mass surveillance of American citizens. “Apple has multiple arguments why it should not be applied in the San Bernardino case. In essence Apple is emphasizing how unusual this type of request is compared to other situations.”

Indeed, in a filing in the San Bernardino case, Apple argued that "the government attempts to rewrite history by portraying the Act as an all-powerful magic wand rather than the limited procedural tool it is.”

Swire said if Congress does not act on encryption issues then “we could see a lot of different cases in the court in the coming years.” But, given the current deadlock in Congress, he does not expect any movement this year, leaving the issue to be thrashed out in the courts in the interim.

Obama weighed in on the dispute in an address last weekend at the South by Southwest Festival in Texas.  “If, technologically, it is possible to make an impenetrable device or system where the encryption is so strong that there's no key - there's no door at all - then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot?”

 However, former national security adviser, Richard Clarke, who served under three presidents, said the federal government is trying to use the 1789 All Writs Act to "compel speech," which courts have ruled it cannot do, he said in a recent radio interview. “What the FBI and the Justice Department are trying to do is to make code writers at Apple - to make them write code that they do not want to write that will make their systems less secure,” he said. “Well, they're compelling them to write code. And the courts have ruled in the past that computer code is speech.”

 Clarke also claimed the National Security Agency could have solved the problem and accessed the phone but the FBI is “not as interested in solving the problem as they are in getting a legal precedent.”