The aftermath of national tragedies always instigates attempts at changing the policy landscape one way or another. This time around, the story is highly reminiscent of the outcome of another domestic attack on Americans from over two years ago.
Reports have indicated that the FBI is in the process of attempting to gain access to the iPhone of Texas church shooting perpetrator Devin Kelley. Agents apparently hope to gain insight into Kelley’s background and motivations based on data in the device. Apple had offered assistance to the Bureau in advising them on how to use Kelley’s fingerprints to unlock the phone. Now that this opportunity is gone (the fingerprint ID feature ceases to operate after 48 hours of not being used), the FBI will have to pursue legal avenues if it wants Apple to cooperate with them in accessing the phone.
Sound familiar?
This episode is in many ways a replay of what transpired following the San Bernardino shootings in 2015, when two ISIS-inspired attackers shot and killed 14 people at an employee gathering at the Inland Regional Center in the city. After the FBI failed to unlock the iPhone belonging to one of the shooters, it turned to Apple for assistance. The tech giant refused, claiming that such an action would create a bad precedent and undermine its commitment to customers’ privacy. The government promptly sued the company for obstructing their investigation.
No legal conclusion was ever reached at that time, as the FBI withdrew their request after it managed to hack the iPhone with the help of mysterious outside parties. Thus there was left the lingering question: What are the rights of government investigators when it comes to breaking through encryption from the private sector?
Since that time, lawmakers and officials, including the current attorney general Jeff Sessions, have been leading the crusade to institute policies that will help law enforcement with this problem in the future.
In truth, these voices in the government making demands on private industry encryption is a bit disturbing.
The attorney general has repeatedly bashed big tech for impeding investigations, claiming in a recent press conference that the FBI has been locked out of thousands of devices over the past year alone. Sessions would like to see a world in which manufacturers are obligated to help investigators gain access to a device, and failing to do so would be obstruction of justice.
Sessions’ deputy Rod Rosenstein has been hinting for months that the Trump administration will take a harder line against the tech industry’s trend toward unbreakable encryption. Rosenstein has pursued this mission over his career. While he was the US attorney in Maryland, for instance, he sought to take companies to court to make them unscramble their data in two separate instances in 2014 and 2015.
In truth, these voices in the government making demands on private industry encryption is a bit disturbing.
Sessions has implied that certain types of encryption should be outlawed if they are beyond the ability of law enforcement to crack. This has drawn criticism not just from the typical left wing opponents of the administration but from the right as well on the basis of libertarian arguments. What business does the government have making rules about the encryption its citizens use to keep their private information safe?
The horror of the killings in Sutherland Springs may provide new fuel for the anti-encryption camp in Washington. It would look very bad, to say the least, if Apple were to be perceived as preventing the investigation of one of the worst shootings in American history.
The ball is now in the government’s court. The FBI may resort to the methods that they employed following San Bernardino. Or, quite possibly, hawks on the encryption issue may use the incident to promote their agenda and take Apple for a legal ride.
