FAN (First Amendment News, Special Series #2) FBI to Continue Working with Hackers to Fight Terrorism . . . & Crime?
The F.B.I. defended its hiring of a third party to break into an iPhone used by a gunman in last year’s San Bernardino, Calif., mass shooting, telling some skeptical lawmakers on Tuesday that it needed to join with partners in the rarefied world of for-profit hackers as technology companies increasingly resist their demands for consumer information. — New York Times, April 19, 2016
This is the second FAN installment concerning the ongoing controversy over national security and cell-phone privacy. As with the first installment, the legal focus here is on First Amendment issues. It is against that backdrop that the Newseum Institute in Washington, D.C. will host a public event on June 15, 2016.
I am pleased to be working with Gene Policinski (the chief operating officer of the Newseum Institute) and Nan Mooney (a D.C. lawyer and former law clerk to Chief Judge James Baker of the U.S. Court of Appeals for the Armed Forces) in organizing the event.
Information concerning that upcoming event is set out below, but first a few news items.
Recent News Items
- Chris Strohm, FBI’s Apple Hack Cost More Than a Million Dollars, Bloomberg Technology, April 21 (excerpt below)
“FBI Director James Comey said the U.S. paid more than he will make in salary over the rest of his term to secure a hacking tool to break into a mobile phone used by a dead terrorist in the San Bernardino . . . . The law enforcement agency paid ‘more than I will make in the remainder of this job, which is 7 years and 4 months,’ Comey said . . . at the Aspen Security Forum in London. . . . Comey’s pay this year is $185,100, according to federal salary tables, indicating the tool cost the agency more than $1.3 million. FBI directors are appointed to 10-year terms.”
- Cecilia Kang & Eric Lichtblau, FBI Says It Needs Hackers to Keep Up with Tech Companies, New York Times, April 19, 2016 (contains video clip) (excerpt below)
“[Ms. Amy Hess, the Federal Bureau of Investigation’s executive assistant director for science and technology,] did not answer directly when asked about whether there were ethical issues in using third-party hackers but said the bureau needed to review its operation ‘to make sure that we identify the risks and benefits.’ The F.B.I. has been unwilling to say whom it paid to demonstrate a way around the iPhone’s internal defenses, or how much, and it has not shown Apple the technique.”
- Steve Musal, Looking for Common Ground in Apple vs. the FBI, Mac World, April 19 2016 (excerpt below)
“Bruce Sewell, Apple’s general counsel, told a House commerce oversight subcommittee that the company already works with law enforcement regularly and would help develop the FBI’s capability to decrypt technology itself, but won’t open ‘back doors’ to its iPhones due to the security risk that would pose to all users. . . . What the FBI wants, Hess said, is ‘that when we present an order, signed by an independent federal judge, that (tech companies) comply with that order and provide us with the information in readable form.’ How they do that is up to them, she said.”
- Dave Welna, The Next Encryption Battleground: Congress, All Tech, April 14, 2016 (excerpt below)
“The leaders of the Senate Intelligence Committee have introduced a bill that would mandate those receiving a court order in an encryption case to provide “intelligible information or data” or the “technical means to get it” — in other words, a key to unlock secured data. “I call it a ‘follow the rule of law bill,’ because that’s what it does: It says nobody’s exempt from a court order issued by a judge on the bench,’ said Committee Chairman Richard Burr, a North Carolina Republican. The top Democrat on the committee, California’s Dianne Feinstein, is a co-sponsor.”
Senate Bill Introduced
Here are a few excerpts from the proposed Senate Bill:
(1) GENERAL. Notwithstanding any other provision of law and except as provided in paragraph 7 (2), a covered entity that receives a court order from a government for information or data shall —
(A) provide such information or data to such government in an intelligible format; or
(B) provide such technical assistance as is necessary to obtain such information or data in an intelligible format or to achieve the purpose of the court order.
(2) SCOPE OF REQUIREMENT. A covered entity that receives a court order referred to in par graph (1)(A) shall be responsible only for providing data in an intelligible format if such data has been made unintelligible by a feature, product, or service owned, controlled, created, or provided, by the covered entity or by a third party on behalf of the covered entity.
(3) COMPENSATION FOR TECHNICAL ASSISTANCE. . . .
(b) DESIGN LIMITATIONS. Nothing in this Act shall be construed to authorize any government officer to require or prohibit any specific design or operating system to be adopted by any covered entity.
(4) DEFINITIONS . . . .
- Andy Greenberg, Why do the Feds Usually Try to Unlock Phones? It’s Drugs, Not Terrorism, Wired, March 31, 2016
- David Coldewey, Sure, why not? FBI agrees to unlock iPhone for Arkansas prosecutor, David Coldewey,TE, March 30, 2016
- David Coldewey, ACLU map shows locations of 63 ongoing phone-unlocking cases, TE, March 30, 2016
Upcoming: Newseum Institute Moot Court Event Read More