Let's not go all Patriot Act on this Apple - FBI encryption thing.

Let's not go all  Patriot Act on this Apple - FBI encryption thing.

I’ve been involved in about a half dozen conversations, three different email threads, and twice as many emails with friends and clients about this Apple – FBI encryption issue.   It seems to be a divided opinion with no compromise, at least as far as I can see.

 

FBI's Fight With Apple Over Encryption May Erode European Trust in US - Newsweek

http://news.google.com Sat, 20 Feb 2016 19:24:00 GMT

NewsweekFBI's Fight With Apple Over Encryption May Erode European Trust in USNewsweekMax Schrems, the Austrian who brought the Safe Harbor case to the European Court of Justice and won, tells Newsweek that the FBI's possible victory over Apple isn't too concerning to Europeans because it is a targeted access to data—not the pre ...and moreᅠ»

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Here is my opinion: “Let Apple develop their software as they see fit for business and consumer demand, as long as their actions do not violate law.” 

That means that I am in agreement with Apple choosing to not decrypt a dead terrorist's phone. I am not a pro-terrorist or pro-criminal person. In fact, in my previous law enforcement career, I arrested more criminals personally than the rest of my 100+ officer department did…combined.  Not once did I have to break the law, bend the law, or misinterpret the law to make any of my cases in patrol or as a detective. Not once did I ask for any leniency or looking the other way ‘just this one time’ to make a case or to gather evidence. Not once. Ever.

So for any law enforcement agency asking ‘just this once’ to do something does not mean ‘just this one time’. It means, “just this one time until we ask again.”  Technical issues aside, whether or not Apple can unlock the phone or just doesn’t want to unlock the phone, the bigger question is why should they?  If a landlord refuses to give a key to a residence that SWAT has a search warrant for, SWAT will just boot the door. They can't force the landlord to give up the key.  I know this analogy is weak in the key area since you can't break unbreakable encryption, but the concept holds true. You can't force the landlord to give up the key unless the key is some how evidence.

Yes, yes, yes, I know this is a terrorist case. I’ve been involved in terrorism cases before  and exactly know how important these cases are (as I have also investigated murders..they are also important). I have seen quite enough to know how important it is to catch pedophiles, murderers, and terrorists. None should be on the street.  But that doesn’t mean taking shortcuts, bypassing Constitutional Rights, or asking a corporation to bend the rules a little to make a case.  Investigators can do this in Hollywood films, but not in real life.  

And yes, I have had cases where evidence was so little that probable cause to arrest didn’t exist. But such is life in the USA. Get PC (probable cause) and make the case or go back to square one.

After 9/11 and we panicked as a country to capture every terrorist responsible, the PATRIOT Act was typed, printed, signed, sealed, delivered, and implemented in 60 seconds flat. I was a federal task force officer at the time the PATRIOT when into effect. I have never seen such authority given to federal law enforcement in such short order without hardly a concern by the citizens the PATRIOT Act targeted (as in, it targets everyone's communications).  We do not need to continue along the lines of granting more authority to do what can already be done under the authority that already exists which is restricted to protect individual rights.  I’ve seen it misused before and it ain’t pretty. It's wrong.

As far as encryption goes, when any encryption is broken or perceived to broken, no one should use it. When TrueCrypt was reported to be flawed, it practically died, as it should.  Broken encryption is like a wet paper bag. It looks like it will hold your groceries until you actually put groceries in it.

Former NSA Chief Michael Hayden Sides With Apple, Though Admits 'No Encryption Is Unbreakable' - Billboard

http://news.google.com Thu, 18 Feb 2016 15:38:22 GMT

The Week MagazineFormer NSA Chief Michael Hayden Sides With Apple, Though Admits 'No Encryption Is Unbreakable'BillboardTim Cook's opinion that Apple should not develop a way to hack into the encrypted phone belonging to one of the San Bernardino shooters has earned an endorsement from an unlikely source, though it comes with a big "but." Michael Hayden, the former NSAᅠ...Ex-NSA, CIA chief Michael Hayden sides with Apple in FBI iPhone encryption fightThe Week MagazineFormer Director of CIA and N ...

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As for me, any software provider (or secure device provider) that tries to sell me encryption that is so good that no one, including the NSA, can get into it, they better mean it. A disclaimer of, “well, sometimes we might let the FBI access our encryption” means that I am going somewhere else. I have nothing to hide, but I also am not going to cut a hole in my bedroom wall for anyone to peer in and look whenever they want.

For those who fall back on the ‘if you have nothing to hide, you have nothing to worry about’, I fully support your beliefs in waiving your protections. After all, I have given Miranda warnings more times that I can remember and I always asked the suspects if they wanted to waive their rights. Most said yes. It’s their right to waive their rights.  But for me, I’m not waiving anything and I’m not in agreement that the choice to waive or exercise my rights can be taken away because a case agent can’t get enough evidence without resorting to bending the rules ‘just this one time’.

I mean, really. Would you buy a safe to hold your most prized and valuable possessions  knowing that a master key exists? That's like trusting the safe in your hotel closet....

Dude, just write the book.
Apple. Oranges. And Encryption.
 

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Sunday, 20 August 2017