Having no position is basically the same as siding with the FBI.

Last week I wrote an article taking the Republican presidential candidates to task for not understanding the broad implications of the Apple and FBI situation. I didn’t consider at the time what the two Democratic candidates’ positions were. So I did a little reading and found that while the Democratic candidates were not firmly on the side of the FBI as the Republicans were, they too didn’t seem to grasp the possible ramifications of Apple being forced to comply with the FBI order. In some way, their weak-kneed refusals to choose a stance are perhaps even worse than what the Republicans stated. I’ll explain why.

Bernie Sanders said he is on “both” sides of the issue. He said he is fearful of “Big Brother” but he also worries about another terrorist attack. Ultimately he says that he believes that middle ground can be reached. At first glance this seems like a perfectly balanced, rational answer, but it shows a tacit ignorance of the technical issues involved. Political compromise will not work in the real world of data encryption.

Hillary Clinton basically offered the exact same answer as Sanders. She also fears abuse of encryption backdoors by “authoritarian regimes,” but believes that there must be a way to find a solution that both keeps data secure and allows law enforcement access. Again, seemingly reasonable but only if one does not understand the underlying technical issues.

Wishy-Washy Pandering

The answers given by both Democratic candidates are political cop-outs. They are not true position statements. While I appreciate the fact that at least these two candidates aren’t calling for Apple to comply with the FBI order, by not specifically siding with Apple, they are leaving the door open for some sort of “compromise.” In this situation, to call for compromise is to implicitly end up on the side of the FBI, which is to stand against individual privacy and security.

The reality of strong encryption is that *ANY* sort of backdoor weakens the encryption protocol to the point of insecurity. Any weakness will eventually be exploited. I find it hard for anyone who does not understand the underlying technical aspects of strong encryption, let alone government officials or political candidates, to propose solutions that verge on pure fantasy. The type of compromise that the the Democratic candidates floated (which is basically what the FBI director wants) is what is termed the “magic pony” solution because it is more wishful thinking than technical reality. I do not know of a single cryptographic expert who would claim otherwise, and even publications like the MIT Technology Review agree that there can be no technical middle ground on strong encryption.

I stated earlier that the Democratic candidates’ responses are potentially worse than the Republican candidates’ positions. By floating false solutions, the Democrats are setting the stage for people to believe that a “compromise” is possible. There is no more dangerous position to hold than one which deceives people into a false sense of security. If people believe that a solution can be created that allows for truly secure encryption that law enforcement can decrypt, they are going to be sorely disappointed when the final political solution shows itself to be insecure. At least we know where the Republicans stand and we can fight their positions with no pretense. When a candidate shows no position or shows a proclivity towards political compromise, we may not know what we will end up with until after they are elected and it is too late.

In analyzing the Apple and FBI court case over the iPhone used by a San Bernadino terrorist, it has become quite obvious that many people are not completely comprehending the entirety of the facts. Unfortunately for Apple, I believe the complexity of the situation is hurting their position in the public eye. The FBI’s side of the issue has generally become overly-simplified. “Apple needs to unlock the iPhone of a terrorist,” is all that many people comprehend. I believe it has been hard for most people to understand the nuances of Apple’s defense. As with anything relating to technology, people can get easily bewildered by explanations of complex topics. Given an overly simplistic and one-sided viewpoint, it really is no wonder that there is much confusion over the issue. When people are not clear on a subject, they tend to fall back to whatever side feels the “safest.” In a case like this, it is no wonder public opinion appears to lean towards the side of “national security.” As proof of this, all one has to do is consider the fact that no candidate from either the Democratic or Republican party has shown explicit support for Apple.

That being said, I believe Apple could be doing a better job of simplifying the perception of their case in the court of public opinion. Unless someone wants to study Apple’s public statements in detail, it can be hard to get to the heart of Apple’s defense and understand why their position speaks to more broad-ranging issues than simply the data on one terrorist’s phone. So to help simplify Apple’s position, I have read Tim Cook’s open letter, watched his interview with ABC, read every page of Apple’s Motion to Vacate, and just this morning, Apple’s prepared statement to the House Judiciary Committee so that I can explain and clarify Apple’s position plus impart why it is so important for everyone to understand.

If you want a quick summary, Apple’s position basically states:

• The FBI’s order goes far beyond any precedent set before.
• It is unduly burdensome to Apple and the technology industry in general
• The precedent set would give government virtually unlimited power to trample on personal liberties well outside of the scope of this case
• Finally the FBI order is quite simply illegal. If anything, this is a matter for congress to legislate, not for the FBI or a judge to decide.

In a nutshell, the FBI’s actions could end up having far-reaching repercussions that devastate the very freedom they are supposed to be protecting. If you’d like a more through explanation, keep reading.

Apple’s Defense Explained

First, it can not be stressed enough that the FBI’s order is NOT a simple warrant to search for some data. Nor is it a request for Apple to do something they can easily do or have done before. It is not as simple as “pushing a few buttons” or just removing some code. If it were so straightforward, Apple would have already complied, as they have in the past and have cooperated so far in this situation. Complying with the FBI’s order will be a massively complex technical undertaking for Apple, taking hundreds or thousands of man-hours to complete, plus potentially a significant amount more resources to maintain after the fact. Never has a private company ever been forced to go through such lengths on an investigation they are not a direct party to. Additionally, the FBI unilaterally decided to change the iCloud password of the terrorist’s account prior to consulting with Apple. Why they did this is not known at this time, but by doing this they wasted a great opportunity to have access to the data on the phone without needing to go through extraordinary measures. It is entirely possible the FBI could have avoided this situation altogether had they not make such a grievous error.

Second, the veritable Pandora’s box that would be opened by complying with the FBI order would be an incredible burden to not only Apple but potentially much of the technology industry. While the FBI claims this would be a one-time request on a single phone, the reality is that many law enforcement departments are already lining up to make the same request as the FBI – and the FBI themselves already have several other cases in waiting! Besides being a significant and costly burden for Apple or any other company with similar products, the creation and maintenance of an insider hacking tool has serious implications on the security of American technology products. If companies can be forced to hack their own products, would they actually be able to create truly secure devices anymore? The monumental burden for companies to create, maintain, and keep secure these self-inflicted hacking tools would be unlike any ever sustained before. Companies are used to protecting trade secrets from other companies, but can they honestly be asked to protect hacking tools that criminals and foreign espionage would no doubt target?

Now the two points I have brought up above are somewhat arbitrary. They primarily speak to the undue burden that the government would place on Apple and other technology companies. It is not hard to see that someone who takes a hardline on national security could brush away these arguments with a simple, “tough luck” rationale. However, the next two points are what I believe are the meat and potatoes of Apple’s position, which truly should be the position of anyone who is concerned with protecting privacy and individual liberties in this country, as well as national security.

Apple’s third argument contends that legal enforcement of the FBI’s order implies that they can literally enforce any request of any kind on any company or individual as long as they claim it is “necessary” for the purposes of law enforcement. There would be virtually nothing that could not be requested, including forcing a company to create encryption backdoors. This is quite literally the definition of conscription, impressment, or involuntary servitude. While the FBI may not be technically asking for an encryption backdoor in this particular case, it is in essence a legal back door to eventually forcing technology companies to cripple the security of their products for the convenience of law enforcement. It is precisely this legal back door that privacy and liberty advocates should be the most concerned about, especially because it could be so broadly applied to almost any company in any industry as well as private individuals.

This argument dovetails right into perhaps Apple’s most powerful defense, namely that the federal government simply does not have the authority to make such a request. It is categorically outside the power given to them through the Constitution by we the people. Therefore such a request is plain illegal. I don’t know how anyone could justify the federal government violating the very Constitution they are sworn to defend and uphold. Tim Cook himself said, “To oppose your government … on something where we are advocating on civil liberties which they are supposed to protect, it is incredibly ironic.”

Why YOU Should Care About What Apple is Defending

While the FBI and the Obama administration may be semantically correct that this particular request is just about one iPhone,  it should be obvious that what the FBI is trying to force Apple to comply with has ramifications far beyond just a single investigation. Absolutely nothing would stop the FBI or other law enforcement agencies from pursuing the same strategy on other cases. If the software Apple were forced to develop were ever leaked into the public, criminals and foreign governments would have a dangerous tool at their disposal. The odds of the software leaking would increase every single time another agency ordered its use.

As Tim Cook reiterated many times during his televised interview, this isn’t about one iPhone, it is about the future. He brought up a great point that my wife especially took notice of: your smartphone likely has more personal information about you, including the location of your family and children, than anything else in the world. The security of people’s data on their smartphones is no trivial matter. If the FBI’s actions end up endangering the private data on millions of people’s phones, that is potentially a disaster of monumental proportions. When viewed as a public safety issue, Apple has just as much of an argument on the side of national security as the federal government does.

The bottom line is that if you care about the security of your most private data: your finances, health data, and even the safety of your family, you must realize that what the FBI is asking for is very dangerous. It would be undermining the extensive security precautions Apple and other technology companies have been refining in addition to subverting many of the principles of individual liberties that this country was founded on. If we are working to protect this country from terrorists who want to destroy our freedoms and principles that we hold dear, why would we accept our own government destroying them instead?

The party of small government? Apparently not when it comes to technology issues.

The topic of the Apple vs FBI situation came up during the Republican Presidential Debate on CNN last night. To my dismay, all the candidates of the supposed party of small government took a hardline, big government stance against Apple. I guess I shouldn’t be too surprised, as I expected this position from a couple of the candidates, but it did confirm my fears on how the situation is being misperceived amongst many in the public. I  would have loved to see at least one candidate take a principled stand against the FBI (et tu, Ben Carson?), which is one reason I really wish Rand Paul had stayed in the race to provide a contrast when the other Republicans stray into the weeds on certain issues. That being said, let’s do a quick run-down on each candidate’s comments:

Donald Trump: The frontrunner was not actually asked about this situation during this debate, but based on his earlier comments, we know Donald Trump’s position (and I’m paraphrasing): Terrorist BAD … FBI GOOD … Apple make me ANGRY! But seriously, his position is based on a simple misunderstanding of the situation, which it seems most of the candidates shared as I’ll explain below.

Marco Rubio: As he usually is, Marco Rubio seemed very rehearsed in his response to the question. He delivered the best zinger of the night saying that “Apple doesn’t want to do it, because they think it hurts their brand. Well let me tell you, their brand is not superior to the national security of the United States of America.” He correctly pointed out that the FBI’s request was not an encryption backdoor but just a way to crack the password on one phone. So it was clear that he had been well coached on the topic, but unfortunately those who were advising him focused on the FBI’s side of the argument, ignoring the positions Apple has brought up. Rubio however was clear that he did not support encryption backdoors in general, so perhaps his team hasn’t had a chance to review Apple’s court filing that was released earlier in the day. Perhaps he will change his position upon further view.

Ted Cruz: For being such a strict Constitutionalist and generally a principled defender of individual liberties, I was most dismayed that Cruz didn’t take a more nuanced stance on the situation. He basically thought that Apple should comply with a legal court order, clearly missing the point that the the legality of the court order is in question – which is truly the heart of the issue. He at least did clarify that he does not support government enforcing encryption backdoors, but he apparently is not aware of the full implications of the FBI’s orders on our rights and freedoms. I’m hoping that once he gets a chance to read Apple’s court filing, he will modify his stance.

Ben Carson: Ben Carson has been a fairly principled small-government advocate and one of the least hardline when it comes to national security issues. So it was odd to hear him say that he believed Apple should comply with the FBI order. However, I also got the impression that Carson was simply not up to speed on the issue. Which again, if one only listens to the soundbites coming from the FBI side of things, Apple just needs to “click a few buttons” and the FBI will have their data. But it is far more complicated than that. Carson was basically just repeating what the other candidates said which was that they believed Apple should comply with a legal court order. Well, sure they should, but this court order is possibly illegal. I’m sure Rand Paul would have pointed that out.

John Kasich: I think John Kasich is just trying to emulate Donald Trump the longer the campaign drags on. Kasich did not actually express an opinion whether or not Apple should comply with the FBI order, but instead just stuck out his chest and admonished President Obama for not forcing Apple and the FBI to come up with a solution. He said that if he were president, he would lock the two sides into a room and not let them out until they reached an agreement. Well, Mr. Kasich, that may work for someone who is an employee of the government under your charge, but Tim Cook is a private citizen, Apple is a private company, and locking up Cook or any Apple employee would basically be kidnapping or unlawful detention. So Kasich showed he doesn’t understand the complexity of the situation either and in some ways, his answer was the worst of any of the candidates. Not all issues can be solved through political compromise, especially when core issues of liberty and privacy are at stake. Going along to get along might make good politics, but it doesn’t protect our freedoms very well.

Let Me Spell it Out for the Candidates

The bottom line is that it was clear none of the candidates understood the technical underpinnings of this situation. This is not a simple warrant to search for some data. If it were that easy, Apple would have already complied, as they have in the past and already have cooperated so far in this situation. There are four main points to consider in Apple’s defense. They are not hard, so even a politician should have no trouble comprehending them:

First, the action the FBI is requesting is not as simple as pushing a few buttons. It will be a complex technical undertaking for Apple to be able to comply with the FBI’s request, taking hundreds or thousands of man-hours to complete, and potentially a significant amount more to maintain after the fact. As I mentioned already, Apple has already complied with all lawful requests from the FBI and has even turned over data in their possession from previous iCloud backups of the iPhone in question. Clearly it’s not like Apple isn’t complying with all reasonable and legal requests. Additionally, had the FBI not unilaterally made the decision to change the iCloud password prior to consulting with Apple, they would have been able to make the iPhone initiate a new backup and avoid this situation altogether.

Second, the veritable Pandora’s box that would be opened by complying with the FBI order would be tremendously burdensome to not only Apple but potentially much of the technology industry. While the FBI claims this would be a one-time request on a single phone, the reality is that many law enforcement departments are already lining up to make the same request as the FBI – and the FBI themselves already have at least four other cases in waiting! Besides just being a significant and costly burden for Apple or any other company with similar products, the creation and maintenance of an insider hacking tool has serious implications on the security of American technology products. If companies can be forced to hack their own products, would they be able to create truly secure devices anymore? The significant burden for companies to create, maintain, and keep secure these self-inflicted hacking tools would be unlike any ever endured before. Companies are used to protecting trade secrets from other companies, but can they honestly be asked to protect hacking tools that criminals and foreign espionage would no doubt target?

Third, the implications of the FBI’s order is that they can literally enforce any request of any kind on any company or individual as long as they claim it is “necessary” for the purposes of law enforcement. There would be virtually nothing that could not be requested, including forcing a company to create encryption backdoors. This is quite literally the definition of conscription, impressment, or involuntary servitude. While the FBI may not be technically asking for an encryption backdoor in this particular case, as Marco Rubio pointed out, it is in essence a legal back door to eventually forcing technology companies to cripple the security of their products for the convenience of law enforcement. It is precisely this back door that small-government advocates should be the most concerned about and why I’m surprised they had not yet caught on to this critically important aspect of the situation.

Which dovetails right right into the final argument, that the federal government simply does not have the authority to make such a request. It is simply outside the power given to them through the Constitution by we the people. Therefore such a request is illegal. I don’t know how anyone could justify the federal government violating the very Constitution they are sworn to defend and uphold. I wish Apple were pushing this point harder, because then I believe it would make it crystal-clear to those who claim to support small government and privacy rights.

It is not surprising to me that the campaigns of these candidates are not up to speed on complex technical issues. A technology advisor is not something that has been part and parcel of a political campaign in the past. But with technology issues becoming more and more of a part of modern politics, perhaps it is time for politicians to consult with technology experts prior to drafting policy positions? I’m certainly willing to lend my expertise to any of these campaigns, if they are willing to listen.

A judge has ordered Apple to comply with the FBI’s request to bypass the security features of an iPhone used by a San Bernadino terrorist. In an open letter, Apple CEO Tim Cook has explained that what the government is requesting threatens the security of all their customers. In effect, the FBI admits that they can not decrypt the data on an iPhone without knowing the phone’s passcode. The FBI knows that not even Apple can decrypt the data, however, they have surmised that if they can load a version of the iOS that does not include certain security features that defeat brute force password attacks, then they can crack the passcode, which might only take minutes in a best case scenario. They claim Apple can create a version of the iOS without these security features, load it on the iPhone in question, and then the FBI can attempt to brute-force guess the password.

Technology experts are warning that if Apple is forced to comply with this order it would have far-reaching consequences for the technology industry, privacy, and security. I am of the mind that the federal government does not have this authority at all, either at the legislative or executive level, much less a federal magistrate of a US District Court in California. It is an unreasonable, overreaching request of a technology company to share a method of bypassing security features in their own product. But there is plenty of discussion of that already. The question I’m surprised so few are asking is why the possibility even exists for Apple to defeat their own security functions?

The key point to consider is that the magistrate conceded that the FBI’s request may not be technically feasible and allowed Apple to respond if that is the case. Instead of stating that this request just isn’t technically possible as Apple has done in the past with other law enforcement requests, Tim Cook instead has vowed to fight this order. Which to me seems to imply that Apple COULD comply with the order. I found one article that describes a technically workable process by which Apple could comply with the FBI’s request. The article does speculate that newer iOS devices with a feature called the Secure Enclave may not be able to be hacked into in the process the FBI is requesting, but that is not certain. The iPhone 5C in question does NOT contain the Secure Enclave feature so that point is moot in this particular case, yet it does call into question the overall security of older iPhones and possibly newer iPhones pending the question of the security hardness of the Secure Enclave feature.

The reality is this: if Apple can technically comply with the FBI’s request, it means that a backdoor to iPhone security does, in fact, exist. Yes, it is a closely guarded secret by Apple, but in theory, this backdoor could be exploited if the secret key that Apple uses to sign their iOS updates is compromised. I would like to hear more about this from experts more versed in this topic than I am as well as an explanation from Apple if this backdoor does in fact exist.

The following is an article that I had been working on for some time. I’ve been editing and adding to this article to try to get it “just right” for several months now. However, with the situation Apple is facing today, I’ve decided that I must release this article now. So please forgive me if this article isn’t quite fully polished or rambles at times, but I felt that the core message had to be shared ASAP.

It’s an issue that has been brewing over the last year-and-a-half. When Apple introduced iOS 8 in the fall of 2014, one particular feature had privacy advocates cheering. That same feature had certain law enforcement officials seething. With the release of with iOS 8, all data on an iPhone or iPad is encrypted when the devices are locked with a passcode. Not only that, but the type of encryption used by Apple is not able to be bypassed, even by Apple themselves. This means that even with a lawful search warrant or court order, Apple can not extract data from any iOS device to provide to law enforcement. In addition, the transmission of certain data, such as iMessages and FaceTime calls, are encrypted from end-to-end, which means that those forms of communication are not able to be intercepted by anyone, including Apple or law enforcement.

At the time Apple introduced the new encryption feature, FBI director James Comey criticized both Apple and Google for using encryption technologies that were not able to be broken into by law enforcement. Apple CEO Tim Cook responded in early 2015 by saying that Apple had no intention of preventing people from encrypting their devices, in other words saying “tough luck” to government. The issue heated up last summer as the FBI director testified during a hearing of the US Senate Intelligence Committee, calling into question the idea that there is no way to create a encryption system that can be circumvented by manufacturers or law enforcement. He and representatives from the Obama administration’s Department of Justice hinted that if technology companies were not willing to cooperate in creating encryption with backdoor access, legislation may be required to force them to comply. In September, Apple formally declined compliance with a federal court order requiring them to turn over real-time messaging between suspects using iMessage, stating that they could not break the encryption technology used. All this was before the terror attacks of Paris and San Bernadino where once again law enforcement officials blamed technology companies for making it impossible for law enforcement to intercept communications or retrieve data from devices. More recently, Tim Cook strongly criticized the Obama administration for not issuing a strong public statement defending the use of strong encryption. Finally, a recently proposed bill in the the New York state assembly seeks to ban the sale of smartphones that do not provide an encryption backdoor. Update: A judge has ordered Apple to create a “hacked” version of the iOS that would bypass the security features that defeat brute force password attempts on an iPhone for use on the particular iPhone of a San Bernadino terrorist. More on this new situation in my next article.

The Poor Government is Just Beside Itself

The government is admitting that publicly available encryption technologies are thwarting their efforts to intercept communications or gather evidence. Current encryption protocols are so good that there is simply no feasible way for government agencies to break them, even with gobs of cutting-edge technology at their fingertips. So they are “kindly” asking technology companies to give them a back door and pushing lawmakers to pass new laws that would not-so-kindly force technology companies to use encryption that can be circumvented. They claim that without the ability to decrypt communications and data, they will be hampered in their ability to investigate terrorists and people will die. Oh, and kidnappers will also run willy nilly and kids will suffer horribly and they will die too. Don’t forget about the kids.

During the Senate hearing in the summer of 2015, several senators seemed shocked and awed that law enforcement couldn’t decrypt modern communications. Some agreed with the FBI and DOJ that legislation may be necessary. Others wondered if technology companies could be help in contempt. Senator John McCain even suggested that technology companies should give the government a special stockpile of encryption keys that could be used to decrypt any data or communication on their devices. “What’s the problem with that?” he asked.

But, But, But … the Fourth Amendment!

It would be funny how politicians twist the meaning of the Constitution if it wasn’t so sad. Some in government argue that the Fourth Amendment “allows” for reasonable search and seizure. Therefore creating laws (or taking executive actions?) that force technology companies to use encryption protocols with backdoors for law enforcement must be “reasonable.” It is humorous to hear otherwise “conservative” politicians argue that the Fourth amendment gives the government authority to define for itself the parameters of reasonable search and seizures. This is clearly a situation where some members of the supposed party of small government have no clue what small government really means.

Let’s take a moment and read the actual text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Hmmm … looking over that text it does not state anywhere that the government is given the authority for “reasonable search and seizure,” nor that they can define what that means. Here’s your constitutional lesson of the day: the Fourth Amendment does not confer any power upon the federal government. Not a single one. It only serves to protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It is not meant to grant power, as many politicians would try to argue, but rather meant to strictly limit the power of government. It is a guarantee against unreasonable search and seizures, not a license for the federal government to define what is reasonable and unreasonable.

The Convenience of Law Enforcement Does Not Override Our Freedoms

Even if we assume for a moment that the federal government has the authority to perform reasonable search and seizures, nowhere in the Constitution is the federal government given the authority to regulate encryption technology, nor dictate how companies offer products or services in the chance that they would need to perform a criminal investigation. If government has the authority to ask for warrants to investigate something, it is not the same as having the authority to require that they MUST be able to decrypt communications or data. That power would be analogous to the federal government requiring that all lock makers must give the federal government a way to easily pick their locks – just in case they need to investigate something that is locked up by a suspected criminal. If law enforcement has the means to decrypt communications or data, that’s fine (in this context), but if they don’t, then that’s too bad. Our freedoms are not subject to the convenience of law enforcement.

The Government Can’t Keep Anything Safe

Finally, if we were to go so far as to allow the federal government to have backdoor access into encryption technologies, do we have faith that they would not abuse this privilege? Or do we trust that they could keep the backdoor keys safe from criminals and other governments?

Edward Snowden pretty much blew out of the water the fantasy that government does not seriously exploit its authority. Besides the documented blatant abuses of the NSA, we also have government agencies like the IRS that can’t handle running a simple e-mail server correctly and secretaries of state that claim they can’t handle more than one mobile device. The purported lack of technology knowledge in both of these instances led to the all-too-convenient loss of communications that might have implicated government officials that were abusing their power. It was either intentional deception by government officials or cases of “innocence by incompetence.” Either way, this should not give anyone the warm and fuzzies for the ability of government to handle technology security. If certain people and agencies are given the power to decrypt the private communications of virtually anyone in the world, just how long do you think it will take for that authority to be abused or mishandled?

Also for a moment imagine just how valuable backdoor decryption keys would be. Anyone who had possession of them would be able to pry into just about anyone’s private lives, blackmail and extort people, and steal corporate secrets just to name a few things. Backdoor encryption keys would be likely the most valuable pieces of information the world has ever known!

We know humans are not perfect. How much money do you think criminal organizations or other governments would pay to bribe the keepers of the keys? That number would probably be astronomical and it would be hard for anyone to not consider taking a bribe like that. Even if we completely trust the people who would handle these incredibly valuable pieces of information right now, what’s to say the next people in line won’t be corruptible?

Finally, even if we assume that those who have guard the backdoor encryption keys will be paragons of morality, those secrets will be the most sought-after data the world has ever known. Criminals and governments would likely stop at nothing to steal them. The federal government can’t even keep hackers from stealing information on tens of thousands of government employees, do we honestly think they’ll be able to keep the keys to our private data safe?

The Government Doesn’t Care about YOUR Privacy

If you want a more concrete example about the lack of the ability of government to keep your privacy safe, take the TSA. The federal government forces air travelers to only use TSA-approved locks on their luggage. The TSA has access to special “master keys” that can open any TSA-approved lock. What would happen if the patterns to those master keys were compromised and leaked out into the public? Then anyone could create a copy of keys that could open a traveler’s luggage without leaving proof of the break-in. Of course that would never happen because the TSA would take extreme caution with those sets of master keys, right? Wrong. The seven master TSA keys have been compromised and anyone with a 3D printer can create a set of keys that will open any TSA-approved lock. And guess what? The TSA couldn’t care less that YOUR privacy and security has been compromised, as long as they can still open your luggage.

Now granted, when luggage travels through various airports, one should not expect that the contents of that luggage is truly secure. So this appalling failure of the federal government is not truly that big of a deal in the grand scheme of things. However, this does spotlight that no system of backdoor access can be trusted to stay secure, even if agencies specifically tasked with security are handling them. One could probably count with an egg timer how long it would take for the proposed backdoor keys for encryption to be compromised. Even worse, most of us probably wouldn’t even know they had been compromised because it would be in the best interest of those with the keys to not publicize the fact that they had them.

It’s Time to Stand Up

The idea that privacy must be balanced against security is a red herring argument. At best it is government being lazy. At worst it is government creating convenient excuses to grab themselves the legal authority to infringe on our privacy. Again, our rights are not subject to the convenience of government. Additionally the government must prove their authority to exercise a specific power, of which forcing the types of encryption technologies we the people can use is not one of them.

For far too long the government has assumed that just because a specific guarantee to a “right to privacy” doesn’t exist in the Constitution, then they have the power to trample over our unalienable privacy rights. Of course, the 9th and 10th amendments prove them wrong, but until enough of us demand that the government follow their own laws, their might makes right. The good news is that technology has developed to a point where we can take measures to protect our own privacy rights even from government. We must fight against any attempt by government to deny, circumvent, or ban these technologies because as we’ve seen, government is one of the worst infringers of our rights – and their meddling would make us all much less secure from anyone with bad intentions.

In a move that took many Internet experts by surprise, the FCC has declared that free pornography on the Internet violates federal law prohibiting obscene programming. In a statement today from FCC Chairman Tom Wheeler, he states that once the FCC took regulatory authority over the Internet as a Title II public utility, it was incumbent on the agency to standardize how it applies existing laws over all forms of transmission in order to protect the children and to avoid potential conflicts of interest.

“Now that the Internet is classified as a public utility, the same as public airwaves, we knew that we had to move to ensure that the same standards of decency we apply to public radio and television were also applied to the public Internet. The Internet is so ubiquitous that with today’s technology, it is trivial for children to view free pornography on their computers or mobile devices. It is not a stretch to say that the Internet reaches more youth today than radio or television ever has. To not prevent our children from obscene content would simply be irresponsible on our part. Additionally it could open the door for relaxing standards on the public airwaves. If we do not apply the same rules to content on the Internet, it is entirely possible that we would be forced to change the way we regulate the public airwaves and that would be completely unacceptable.”

The FCC chairman went on to say that they are not violating free speech because obscene material is not protected by the First Amendment. In addition, because people can pay for pornography on the Internet in much the same way that they can pay for it via cable or satellite TV, they are not infringing on people’s rights to view such content. He explained that the “paywall” system that exists on cable TV ensures that minors can not legally view pornography since they would not have access to credit cards to pay for it. “What works well for cable companies can also work well for Internet companies. We aren’t done investigating ways to apply the various models that exist in the cable TV industry to the Internet. For example, we may soon require companies like Netflix to charge extra for unrated shows like ‘Orange is the New Black’. A ‘pay-per-view’ system would ensure that minors could not watch shows that may be potentially indecent, even if their parents have already paid for the content. We feel confident that adults will not mind paying to re-watch an episode knowing they are protecting the youth of the nation from potentially offensive content.”

Also surprising was the method the FCC took to declare free pornography illegal. “We did not need to take a vote for this procedural action. Having already declared the Internet a public utility equivalent to the public airwaves, we already posses the authority to apply existing standards. In fact, if we did not take this action, we could be viewed as shirking our responsibility to the public. I am simply protecting the trust the public has placed in our agency and the federal government at large.”

Additionally Mr. Wheeler foreshadowed a definition of the controversial “harmful devices” clause in the FCC ruling on Internet Title II authority. “Given that the Internet is basically an unlicensed broadcast platform, we are considering how to apply part 15 of the FCC rules that state devices may not cause harmful interference and must accept any interference received. We are working with our partners at the NSA to understand how devices that employ strong encryption could potentially subvert these rules. We are reviewing their suggestions to require technology companies to give government agencies a way to decrypt data as a means to ensure that devices can not be used in harmful ways.”

When asked if the FCC would take further action on regulating content on the Internet, Wheeler stated that nothing within their authority was off the table. “When we declared our intention to protect Net Neutrality for legal content, we meant it. But that means that we must act to make clear what content is legal or illegal. With the help from our partners at the RIAA and MPAA, pirated music and movies are on our shortlist. With the upcoming elections in 2016, we also need to make sure that content of a political nature is properly scrutinized for compliance.”

Also asked about how the FCC would enforce existing rules over the Internet, the FCC chairman stated that he has already reached out to many of the same people who worked on the Healthcare.gov health insurance marketplace web site. “They did an amazing job creating that site and we feel confident they can do similar work designing a way to seek out and report obscene content online. We will have massive data centers built to store and catalog all records of reported obscene material. I give you my word that I will personally review all said material to ensure the proper working order of such a system. And to answer your next questions, we can simply increase existing USF fees and expand their application to Internet service providers to fund this system. Technically it’s neither a penalty nor a tax so we’re sure Internet users won’t mind.”