There was an international uproar when Edward Snowden made his public revelations several years ago that, for national-security reasons, American phone companies and social networks were providing the federal government with access to their clients’ data.
And it hasn’t ended yet.
Snowden remains a fugitive in Russia charged with espionage. Congress, courts, international bodies and critics have weighed in on the propriety, if not the constitutionality, of these intrusive practices.
Social-media corporations banded together as a coalition to resist further collaboration with the government, claiming that the government’s digital intrusion on Apple, Google, Yahoo, Microsoft, LinkedIn, Facebook, Dropbox, and Twitter have cost them a multibillion-dollar fortune in lost Internet users and tarnished the image of their companies.
One result of the Snowden fallout was that companies offered clients techniques of encryption, without back-door access for law-enforcement purposes, in order to reclaim their business and reputations.
That practice raised complaints by law-enforcement organizations, and it came to a head recently when the FBI demanded access to the Apple’s iPhone records of a user-client suspected in the San Bernardino shootings in December.
U.S. Magistrate Sheri Pym ruled that Apple had to cooperate with the FBI or presumably face contempt-of-court charges. Apple President Tim Cook refused to comply with the court order, saying that Apple (and Google) now have smart phones and other devices with encryption that cannot be broken — a response, or over-reaction, to the post-Snowden era of debate over privacy versus national security.
Cook says Apple cannot provide “a reasonable technical assistance” to the FBI, as ordered by the magistrate.
And so the pendulum swings, from prior excessive, unwarranted invasions of privacy to such total privacy protection that, even with a court order and legitimate reasons, law-enforcement agencies cannot secure information in the public interest.
In the San Bernardino case, 14 innocent people were killed and 22 others were injured. The terrorists were killed, too.
Critics of the court order fear that if the government can get access, so could hackers — a charge that would result in covering up serious crimes, with no proof of the necessity to do so in specific cases. Apple says it has no “back door” to its encrypted services and doesn’t want to create one.
The Communications Assistance for Law Enforcement Act of 1994 (CALEA) requires traditional phone companies to include lawful intercept capabilities. The FBI is seeking its expansion to other companies as a law enforcement necessity.
Civil-liberties organizations and software manufacturers argue that weakening encryption makes citizens vulnerable to hacking by criminals and foreign governments. That seesaw debate will continue until a balanced compromise is found.
Dead end? It is unlikely that the parties — here, Apple, the FBI and the magistrate — will settle their dispute, which is likely to go to higher courts, and possibly Congress, for resolution.
There needs to be a balanced resolution as the policy considerations are weighty on both sides.
Snowden has said that after a warrant is issued, encrypted material and geo-location data can be accessed from the cloud, and that back doors in any system can be accessed by savvy intruders, as well as law enforcement officials.
He advocates an international “Magna Carta” for the Internet governing digital rights worldwide. Rather a statesman-like suggestion for a man without a country, reviled and revered, with equal passion, around the world.
Ronald Goldfarb is a Washington, DC attorney and author, whose book “After Snowden: Privacy, Secrecy in the Information Age” was published last year.