What others say: Congress should decide Apple encryption issues

  • Sunday, March 27, 2016 3:56pm
  • Opinion

The Justice Department and FBI insist the encryption debate is critical to national security, and they’re right. The problem is that — amid another terror attack in the West — they continue to supply more reasons to doubt their credibility and even basic competence.

In the latest reversal, Justice is conceding that the FBI may be able to crack the iPhone used by San Bernardino shooter Syed Rizwan Farook without Apple’s help. On Tuesday the company was due to challenge the California court order mandating the creation of a custom operating system in order to defeat legal encryption and other security measures.

In a shock filing the night before, Justice reported that over the weekend, apparently, “an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone.” The FBI “has continued to research methods to gain access to the data stored on it. The FBI did not cease its efforts after this litigation began.” The legal proceedings are now thrown into limbo while the deus ex machina technique is tested.

This twist with double somersault is especially notable because DOJ has insisted for months that “the undisputed evidence is that the FBI cannot unlock Farook’s phone without Apple’s assistance,” as the department put it in a March 10 brief. The source code for the operating system is designed to reject programs that are not electronically “signed” by Apple, and thus “Apple alone” and “only Apple” can be commandeered, Justice argued.

Now we learn the FBI, far from exhausting all other practical options, had been pursuing such non-Apple leads all along. The FBI isn’t providing details about its new method, but perhaps the G-men will exploit some security flaw in Farook’s older-model phone.

Yet this makes the legal showdown all the more reckless. High-profile terror violence like San Bernardino requires more discretion and sensitivity than an ordinary homicide.

Instead, Justice rushed to legal war with dubious theories. As it escalated its rhetoric, it even threatened to confiscate Apple’s source code and electronic signature: “The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers.”

Even Justice concedes that the source code and signature are the “keys to the kingdom,” that, if stolen, would let hackers and spies enter millions of devices world-wide. So the same pros who can’t defend Office of Personnel Management records should get custody of Silicon Valley’s most dangerous intellectual property.

Justice also fibbed by saying the Apple case is about one phone. The FBI and state and local prosecutors are pursuing dozens of similar suits — and the circumstantial evidence continues to pile up that targeting Apple was less about counterterrorism than a hand-picked case meant to set a legal precedent for the encryption “back door” that the FBI wants.

In a democracy, the questions raised by encryption should be resolved by Congress, not by free-lancing judges. Those questions won’t vanish because the Apple case is on hold. Legislators could start by appointing a panel of expert arbiters who are more trustworthy than the FBI and Justice Department.

— The Wall Street Journal,

March 22

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