Beyond surveillance: what could happen if Apple loses to the FBI

This is how a former White House technologist envisions a future in which Apple loses its privacy battle with the US government.

The year is 2026. You get in your new Tesla for a milk run. You place your fingertip on the door handle, the door unlocks, and the car knows it’s you as you step inside because it read your fingerprint.

The car, on its own, pulls out of the garage while you scroll through live streams broadcast by your friends on whatever app has succeeded Instagram.

The doors lock. The car passes the convenience store and its dairy aisle. Instead, it makes two lefts then a right before pulling up to the local police station. The cops are waiting outside. They got a judge to make Tesla update your car’s self-driving software to lock the doors and deliver you to the local precinct. You looked like a guy caught on surveillance camera and the police had a few questions.

According to Ashkan Soltani, an engineer by trade who spent the past year working on privacy policy for the US government, this world might not be the realm of science fiction. If Apple loses its brawl with the US government over whether it must write code to defeat the security system of an iPhone linked to the San Bernardino shootings, Soltani sees that kind of scenario as a terrifying possibility.

That fight officially begins on Tuesday when Apple and government lawyers meet for the first time in a southern California federal court.

Soltani has some grounding here. He won a Pulitzer prize for helping the Washington Post sort through documents leaked by Edward Snowden and has published papers on privacy technology through Berkeley, Stanford and Harvard. He isn’t just a guy who watched too many dystopian films.

He and others make a compelling case that the Apple fight isn’t really about surveillance, or encryption, or who else may have known about the horrific killing of 14 people in a southern California office complex on 2 December.

It’s about who can manipulate the 1s and 0s that control our ever-increasing number of devices that track how we drive, when we’re home and if the door is locked.

“We already have a hard enough time trusting our technology and understand what it’s doing,” says Soltani, who worked on regulation for the Federal Trade Commission with a brief stint at the White House. “What the government is asking Apple to do in some way is to further undermine that.”

FBI director James Comey is sworn in at the House hearing on ‘The Encryption Tightrope: Balancing Americans’ Security and Privacy’ earlier this month. Photograph: Shawn Thew/EPA

Consumers rationally enough gave up this agency when they allowed Microsoft to push automatic Windows updates or Apple to upload a U2 album onto every iPhone. The Apple case will decide if that power stops with a digital product’s maker, or if it can extend to the federal government. Washington, though it would never say it this way, effectively wants Apple to make its programmers agents of the state in its San Bernardino investigation.

If the FBI wins, Apple would fool gunman Syed Farook’s work iPhone into accepting a benign-seeming software update, the kind Apple regularly ships out to the nearly 1bn iPhones it has sold since 2007. But in this case, the software sent by Apple would disable certain iPhone security measures to make it easier for the government to guess the phone’s four-digit passcode. Because of Apple’s security features, only Apple can push such a system tweak to one of the phones.

As the government acknowledges, courts operate on precedent. So if the FBI wins this time, it means it is more likely to win the next.

This year, a favorable ruling could decide whether laptop cameras can be conscripted as spies or smartphones become permanent homing beacons.

In a year or two, the same ruling may have set laid the groundwork for whether your car becomes your police van or your home becomes your holding cell.

Obviously, predicting the ripple effects of a court case that hasn’t started is perilous. The courts, for instance, could rule against Apple in this extraordinary case but decide to be silent on the broader questions about control of technology. Or Congress could find a middle ground with an update to woefully outdated wiretap law written for a pre-smartphone era.

Apple could very well win in a sweeping supreme court decision that puts computer code outside the reach of law enforcement officials. Or it could persuade Congress to craft new law protecting tech companies from law enforcement. That of course would raise its own issues about the power of private corporations.

One current federal prosecutor predicted a lot of “bad guys are better off and we only get the dumb ones”. Stewart Baker, a former attorney for the National Security Agency, took Soltani’s Tesla warning to the opposite extreme.

Baker, now a partner at Steptoe Johnson, asked: “Would you rather live in a world where the Tesla could be packed full of explosives, programmed to drive through the fence and into the White House” and the secret service unable to get Tesla to remotely stop the vehicle?

Either way, Americans will have to decide if they are OK with technology creating walled off spaces. That can be now, or it can be the next time Silicon Valley gets in the way of a criminal investigation.

This is something both Apple and the government agree on.

As Apple lawyers recently wrote, the case pits “what law enforcement officials want against the widespread repercussions and serious risks their demands would create.” Or as James Comey, director of the FBI, told Congress in March, the case is about “this collision between public safety and privacy”.

Public opinion polls commissioned by Pew and the Wall Street Journal/NBC News show that Americans narrowly back the FBI over the iPhone maker. The problem for Apple and its backers is that consumers tend to put perceived near term risks, such as mass shootings, over theoretical ones – like Big Brother.

Science fiction writer Bruce Bethke, who coined the term “cyberpunk” in 1983, doesn’t think like a typical consumer.

“Does your water meter report you to the local public utilities commission if you’re illegally watering your lawn on a Tuesday? It will. Does your cellphone call your health insurance provider if its GPS coordinates indicate you’ve just entered a tobacco shop? It will,” he wrote in an email. “Does your toilet report you to your doctor when you’re not getting enough fiber in your diet? It will.”

Americans are connecting more and more of their devices – their refrigerators, their thermostats, their cars, their door locks – to the internet. Photograph: Erik S Lesser/EPA

Nick Harkaway, the British author of The Blind Giant: Being Human in a Digital World and currently writing a novel based on a surveillance state, said that if Apple loses, “Everything connected in your life now belongs to law enforcement: your phone, your satnav, your DVR,” or digital video recorders for TV reruns.

Such views aren’t just fantasies created by authors.

At a recent security conference in San Francisco, several leading cryptographers – the programmers and mathematicians who use complicated algorithms to make encryption work – pondered about the the deeper meanings of the Apple case.

Moxie Marlinspike, the developer behind the secure messaging app Signal and the encryption protocol used by Facebook’s WhatsApp messenger, worried that if Apple loses, the government could compel the company to alter programs downloaded from the App Store, such as his own, to be more surveillance friendly.

“The thing about the world where the FBI doesn’t miss anything, that’s a world where the FBI knows everything,” he said. He for instance noted that now accepted social movements – such as gay rights and the movement to end slavery – began as illegal forms civil disobedience. If keeping a secret isn’t possible, these movements can’t start, he reasoned. “I think it should be possible to break the law,” he said.

On stage, Whitfield Diffie, the godfather of modern encryption donning a suit and long, groomed white hair chimed in sternly. “In a tyranny you build people mechanisms to deny people opportunities to take control of their actions,” he said.

Barack Obama and other Washington officials obviously aren’t proclaiming they want to create a surveillance state. The world they describe is one of balance. Consumers generally maintain digital privacy, but in times of duress, criminal suspects might lose theirs.

But where they draw that line becomes less clear as Americans connect more and more of their devices – their refrigerators, their thermostats, their cars, their door locks – to the internet. James Clapper, America’s top spy, told the US Senate in February that all of these things become inviting targets for intelligence agencies for “identification, surveillance, monitoring, location tracking, and targeting for recruitment”.

What may be a far out spy trick today, has a history of becoming a tool for police departments five years later.

Even if Americans decide that’s a future they want, an Apple loss nevertheless could create a world in which consumers may no longer be able to trust the gadgets they buy are working for them.

“That’s something we’re going to have to get right as we embed these systems into our lives,” Soltani, the former tech regulator, said. “Otherwise we go back to this world where we keeping going, ‘What the hell is this thing doing?’”

Soltani, who left the White House in February, is taking some time off from government and plans to travel the untamed west coast in a camping van he alone controls.

He will bring his smartphone.

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