Re What if Responsible Encryption Back-Doors Were Possible? - Lawfare

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Tom Glocer <tom () glocer com>
> Date: December 2, 2018 at 10:27:52 PM GMT+9
> To: "dave () farber net" <dave () farber net>
> Subject: Re: [IP] Re What if Responsible Encryption Back-Doors Were Possible? - Lawfare
>
> Dave 
>
> This debate reminded me of a long piece I posted to my blog in 2016 on the Apple IoS security debate
>
> Regards
> Tom
>
> http://www.tomglocer.com/2016/03/03/apple-back-doors-and-the-city-on-a-hill/
>
> Apple, Back Doors and the City on a Hill
> Bad facts make bad law. This well-worn legal aphorism may well describe the state of American privacy law if the FBI 
> is successful in its bid to compel Apple to write a special version of its iPhone operating system to provide a “back 
> door” into one of its legacy devices.
>  
> Ostensibly, the question presented is whether Apple can refuse a court order to assist the FBI in gathering evidence 
> from one specific phone provided by the employer of a dead terrorist. However, the potential precedential 
> significance of the case is far greater.
>  
> The late Syed Rizwan Farook, together with his wife, Tashfeen Malik, killed 14 people and wounded 22 others in San 
> Bernardino, California before meeting a swift and just end. As part of its investigation, the Federal Bureau of 
> Investigation sought and obtained an court order under the All Writs Act of 1789 ordering Apple to write a special 
> version of its iOS to defeat two security features included in the operating system of Farook’s legacy 5c iPhone. In 
> its request, the FBI was at pains to stress the supposedly limited nature of the cooperation sought: just a little 
> bit of code to be downloaded one time on a single out-of-date phone owned by the government employer of a dead 
> terrorist-murderer. How could that be unreasonable?
>  
> In this case I believe it is, but the decision is neither an easy one nor an absolute one for all cases. Rather, as I 
> argue below, these types of requests by law enforcement should be judged on a reasonableness standard based on their 
> unique facts and circumstances, with personal privacy and freedom of communication given a strong but rebuttable 
> presumption.
>  
> The Farouk case is just one of many requests the FBI has made to Apple to assist it in recovering information 
> believed to be stored on its phones or in the iCloud. The FBI has chosen well to litigate this matter as the Farook 
> set of facts makes an attractive test case for them. While Apple has generally complied with such requests in the 
> past, it has refused in this instance because it argues that in balancing public safety versus our right to privacy, 
> acceding to the FBI request in this case would set a dangerous precedent. In particular, Apple argues that it will be 
> impossible to limit the “back door” the FBI seeks to only unlock the late terrorist’s phone without jeopardizing 
> others. To understand why requires some additional background on Apple technology and criminal procedure.
>  
> What the FBI is asking Apple to do in the Farook case is to create a special version of the iOS (it has been dubbed 
> “govtOS”) that once installed on Farook’s 5c will (i) allow an unlimited number of attempts to enter the four-digit 
> passcode and (ii) eliminate the artificial and progressive delay that the standard iOS introduces after repeated 
> failed attempts. This will allow the FBI to use what is known as a “brute force” technique to try up to all of the 
> 10,000 possible four-key combinations needed to unlock the phone.
>  
> The FBI analogizes its request to serving a lawful search warrant on a landlord to gain access to a suspect’s 
> apartment with a master key. I think a more apt analogy would be a request to the landlord to send a team of its 
> handymen to replace an existing wall of the suspect’s apartment with a new fake wall that includes a secret doorway. 
> The extraordinary nature of the request consists in forcing the recipient to build something it would not otherwise 
> undertake and which, in fact, it believes would render the apartment (or phone) insecure. The secret doorway like the 
> special iPhone back door would permit anyone less trustworthy than the FBI to access the contents of the 
> apartment/phone.
>  
> As for the criminal procedure context, it is important to understand what would happen if and when the FBI gained 
> access to Farook’s phone. In particular, to determine whether the FBI would be able to keep its promise that the 
> special back door created for the Farook case would never become public or fall into dangerous hands. Since both 
> prime suspects are dead, investigators probably want the phone to discover if there are accomplices who could be 
> identified via information currently encrypted on the phone or if there is other information that would be useful in 
> preventing future attacks or adding to our understanding of terrorist networks. There is no suggestion, however, that 
> there exists a clear and present danger of another specific attack or lives in danger that makes access to the 
> contents of Farook’s phone critical. This would, like in the First Amendment free speech context from which I borrow 
> this talismanic words, convince me to overcome my presumption in favor of personal privacy and agree to the FBI 
> request. Absent such an extreme threat, I assume the investigation might play out on the following lines: I imagine 
> that via access to Farook’s phone, the FBI could discover, arrest and charge one or more other conspirators. What 
> would happen next? The defense lawyers and their forensic experts would demand access to the rogue govtOS code to 
> dispute that the system worked as alleged to implicate their client.  For example, they would be free to argue that 
> the name of their client was inserted by the FBI via the special govtOS code and not present in the original memory. 
> Thus, at least to me, it does not sound farfetched that the back door code would then be released and pass through 
> many hands, exposing us all to cyber insecurity.
>  
> While we are on the subject of the law, I find it ironic that all of the candidates seeking the 2016 Republican 
> nomination extol their steadfast dedication to the Second Amendment to the US Constitution (conferring a right to 
> bear arms), but rush quickly to condemn Apple for refusing to comply with the magistrate’s ex parte order to build a 
> back door into the iPhone. As I understand it, a major tenet of the conservatives’ insistence on the right to carry 
> concealed weapons or automatic rifles is that this will protect Americans from the potential tyranny of their 
> government. However, if my goal is protecting liberty, I find it far more effective to protect our right of free 
> speech and freedom of assembly by allowing the use of encrypted communications than maintaining an arsenal at home 
> that I can use against a drone-equipped national military. Hence my preference for a rebuttable presumption in favor 
> of privacy, just as I support the right of Americans to own guns, just not AR 15 automatic weapons – Constitutional 
> rights should not be absolute when they bump up against each other.
>  
> Finally, I believe there is one additional and decisive reason to support Apple in its refusal to create even 
> “limited” back doors. The Internet is a great force for freedom and democracy based on its ability to connect us, 
> remove friction and rapidly disseminate information. Like most technologies, it is also “dual use” and can facilitate 
> terrorist coordination and cybercrime. No matter how noble the motives of the FBI in seeking to crack Syed Farook’s 
> iPhone, repressive regimes around the world are watching and will happily order Apple and other American technology 
> companies to write potentially more dangerous and intrusive “limited” instruments to facilitate their law enforcement 
> efforts. They may do so even if US courts ultimately support Apple’s position; however, the United States should not 
> abandon the moral high ground.
>  
> The City on a Hill should not leave the back door open.
>  
>
> Published March 3, 2016, at 9:32 pm by tomglocer
> Comment 
> > > > On Sat, Dec 1, 2018 at 10:42 PM Dave Farber <farber () gmail com> wrote:
> > > >
> > > >
> > > >
> > > > Begin forwarded message:
> > > >
> > > > > From: Herb Lin <herblin () stanford edu>
> > > > > Date: December 2, 2018 15:25:49 JST
> > > > > To: "dave () farber net" <dave () farber net>, ip <ip () listbox com>
> > > > > Cc: "ross.stapletongray () gmail com" <ross.stapletongray () gmail com>
> > > > > Subject: RE: [IP] Re What if Responsible Encryption Back-Doors Were Possible? - Lawfare
> > > > >
> > > > > Here’s the industry event to which Ross refers (https://youtu.be/tH7pHJAO1t8).  Ross is right that I said some 
> > > > > things that were said during the Clipper debate.  That’s because some of the things said in favor of Clipper were 
> > > > > valid.  That doesn’t mean that Clipper was a good idea. 
> > > > >
> > > > >  
> > > > >
> > > > > If someone wants to challenge me on something specific that I said during that talk, I’m happy to engage in that 
> > > > > discussion.  That includes Ross, by the way.
> > > > >
> > > > >  
> > > > >
> > > > > The short version of what I said – or what I was trying to say, in any case—was that the technical debate is over 
> > > > > as far as I am concerned – I fully accept the conclusion that it is impossible to develop an encryption system 
> > > > > with exceptional access that is as secure as one without it.   But the advocates of responsible encryption are 
> > > > > asking for something else—they are asking for the most secure system possible subject to the constraint that 
> > > > > exceptional access is possible.  Whatever system comes out of that process *will* be less secure than what is 
> > > > > possible without exceptional access.
> > > > >
> > > > >  
> > > > >
> > > > > Whether the diminished security is or is not worth the benefits to law enforcement is a policy question, not a 
> > > > > technical question.  Advocates of exceptional access say “yes”, privacy advocates say “no.”  Both are reasonable 
> > > > > answers, but neither should pretend that their judgments are technically based—they are policy judgments.  For 
> > > > > myself, I note that policy judgments – unlike technical conclusions – are necessarily made in the particular 
> > > > > societal and political circumstances extant at the moment of that judgment, and so anyone making a policy 
> > > > > judgment ought to take those circumstances into account.
> > > > >
> > > > >  
> > > > >
> > > > > I confess to being surprised at Ross’s assertion that I am “fine with the potential to arm fascists in the 
> > > > > information age,” which is as close to an ad hominem attack as I’ve ever heard him make on me or anyone else.  If 
> > > > > intellectual honesty is part of the that potential, then I regret that I have to plead guilty.  But by the same 
> > > > > token, I think that anyone who works to develop better information technology also has to plead guilty, since 
> > > > > it’s impossible to make information technology unusable by fascists.
> > > > >
> > > > >  
> > > > >
> > > > > Herb
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > > =======================================================================
> > > > >
> > > > > Herb Lin
> > > > >
> > > > > Senior Research Scholar, Center for International Security and Cooperation
> > > > >
> > > > > Hank J. Holland Fellow in Cyber Policy and Security, Hoover Institution
> > > > >
> > > > > Stanford University
> > > > >
> > > > > Stanford, CA  94305  USA
> > > > >
> > > > > herblin () stanford edu
> > > > >
> > > > > Twitter @HerbLinCyber
> > > > >
> > > > >  
> > > > >
> > > > > From: Dave Farber <farber () gmail com> 
> > > > > Sent: December 1, 2018 7:27 PM
> > > > > To: ip <ip () listbox com>
> > > > > Subject: [IP] Re What if Responsible Encryption Back-Doors Were Possible? - Lawfare
> > > > >
> > > > >  
> > > > >
> > > > >
> > > > >
> > > > >
> > > > > Begin forwarded message:
> > > > >
> > > > > From: Ross Stapleton-Gray <ross.stapletongray () gmail com>
> > > > > Date: December 2, 2018 10:46:39 JST
> > > > > To: DAVID FARBER <dave () farber net>
> > > > > Subject: Re: [IP] Re What if Responsible Encryption Back-Doors Were Possible? - Lawfare
> > > > >
> > > > > On Sat, Dec 1, 2018 at 5:38 PM Dave Farber <farber () gmail com> wrote:
> > > > >
> > > > > Haven’t we been around this idea many many times like Clipper chip etc
> > > > >
> > > > > Is there no memory in the system?
> > > > >
> > > > >  
> > > > >
> > > > > We have been. There's just a dogged persistence among those who would like the first-order job of the government 
> > > > > knowing things for control to be easy. I heard Herb Lin speak on this at an industry event, and it was like 
> > > > > Clipper all over again. Stu Baker similarly. I'm not exactly sure what drives either, as Baker hasn't been 
> > > > > working for the NSA for decades, and Herb is at Stanford. But both are fine with the potential to arm fascists in 
> > > > > the information age.
> > > > >
> > > > >  
> > > > >
> > > > > Meanwhile, I'm back looking for work, as Rocket Lawyer (which had been a fascinating four months) seems to be 
> > > > > imploding, and let a lot of us go. But the market is great... I've got a site interview with a Kleiner-backed 
> > > > > tech-start up in a week, and interviews for a privacy engineer position with a major non-profit.
> > > > >
> > > > >  
> > > > >
> > > > > But ideas for where else to look always solicited gratefully!
> > > > >
> > > > >  
> > > > >
> > > > > Ross
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > >
> > >
> > > -- 
> > > Thomas Leavitt
> > > Internet enabled since 1990
> >
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