Saturday, February 20, 2016

The Security Chess Game

The Justice Department is now chiming in to defend the FBI's All Writs Act request to Apple. We've also learned that late last year the White House ordered government agencies to work around encryption. As Bloomberg reports, agencies were requested to "find ways to counter encryption software and gain access to the most heavily protected user data on the most secure consumer devices."

In the DOJ's defense of the FBI's request, they said that Apple's refusal to comply "appears to be based on its concern for its business model and public brand marketing strategy." That may be true, but the government is playing the same game. It looks like they are using the emotions around the San Bernardino incident to garner political support for a more strategic move against companies refusing to break encryption. They know this could set the precedent they need to strong arm industry players into either installing "backdoors" on encrypted devices or bending over whenever the FBI comes knocking.

So we have competing strategies at play: the enabling of security vs. the subversion of security. Which one were you taught in high school was the government's side?

As I mentioned in a previous post, government agencies have ways to get into devices. Andy Greenberg has an entire article on the ways government officials can get access to data on an iPhone. So this really does seem like the government is playing a chess game here.


Regarding the All Writs Act request, check out Orin Kerr's thoughts on the 1789 statute. The ruling precedent right now is the 1977 case United States vs. New York Telephone. According to Kerr,
The tricky part of New York Telephone is that the Court left the actual test for what the AWA allows frustratingly murky. The Court was comparatively clear about one essential limit on a Court’s power under the AWA: "We agree that the power of federal courts to impose duties upon third parties is not without limits; unreasonable burdens may not be imposed." Okay. But the rest of what the Court says is really unclear.
So the chess game could be a long one.

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