02/23/16 – Marcy Wheeler – The Scott Horton Show

Hey, Al Scott Horton here.
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All right, you guys, welcome back.
I'm Scott Horton.
It's my show, The Scott Horton Show, libertyradionetwork.com, scotthorton.org.
All right, first up today, it's our friend Marcy Wheeler from emptywheel.net.
That's her great blog, emptywheel.net.
How you doing, Marcy?
Welcome back.
Hey, how are you?
I'm doing real good.
I'm happy to talk with you again, and very happy to learn all kinds of stuff when I read you, as always.
Apple, FBI, what are they fighting about?
Whether the FBI can force Apple to rewrite its software, rewrite its operating system.
Well, so, but the other side of the story is that, yeah, but no, it's really just a warrant to search the guy's phone, and why won't they help, Marcy?
Oh, golly, why won't they help?
One thing that we should start with is that the FBI already knows who committed this attack, and already knows that Farouk and his wife were not directed by anyone overseas.
So, I mean, that often gets forgotten in this debate.
There is zero question about who committed the attack.
So it's not clear.
San Bernardino, we're talking about here.
Right, right.
So it's not clear why it is that the FBI is making this their big issue, but the FBI, besides the fact that it's terrorism, terror, terror, terror, and therefore people start acting like idiots, and therefore a request that might get more critical thinking as the request they made in October, which was just for a drug case, turns out right after they made the request, the guy pled guilty.
So it's clear they didn't need the evidence in his phone to get him to plead guilty.
But people are going to rush to expand authorities as soon as you issue, as soon as you utter the word terrorism, in a way that they're not going to do when you say drug war.
And that's a big part of what's going on.
So yeah, the FBI, this is a phone that is encrypted, and the FBI says, we don't want you to unlock his phone.
What we want you to do is disable two security features.
One is which prevents you from trying to brute force a password attempt more than 10 times.
And the other one is a delaying function that Apple put in there.
And they say, well, just shut these down.
We'll even let you keep the phone, and we'll just send you the brute force attempts.
And so that won't make anyone else less safe.
And the reason it will make people less safe is, as I had originally said, this is not about, I mean, Jim Comey just testified on February 9th.
And he said, one of the reasons that the FBI wants backdoors is so they can solve car accidents.
That is so far from scary terrorism case that it's even obscene that we're discussing making all of us less safe in the interest of solving car accidents.
But we also learned today that since basically September of last year, FBI has asked for this All Writs Act, which is basically, here's a warrant, but we can't serve it by ourselves.
So make the company help us.
It's a 1789 law.
It probably is invalidated by Calais in the case of Apple, which is where part of this discussion will go.
And we can return to that.
So there are 17 devices across 15 requests that the FBI has asked to open.
So it's not just it's not just Farouk's phone.
It's not just the meth dealer in October's phone.
It's more people's phone.
And it's going to, you know, it's going to be an order of magnitude more as soon as as soon as Apple has to start rewriting its operating system.
And so, in other words, this really is not about San Bernardino at all.
This is a war by the FBI against basically, you know, the courts, I guess, to get this permission to expand, to set the precedent, to expand their authority in a way that I guess so far they've been unable to get Congress to grant them.
Well, here's the ridiculous thing is on October 9th or thereabouts, Jim Comey went before Congress and he said, no, the administration is not asking for legislation at this time.
That very same day is when FBI asked for the All Writs Act in Brooklyn.
And it just so happened that they pulled a magistrate judge who cares about the Constitution.
His name is James Orenstein.
He should be everyone's hero.
And Orenstein was like, wait a second.
When Congress passed Calaya, which is the law that requires telephone companies to make it possible to wiretap ongoing conversations, when Congress passed Calaya, they specifically thought about whether it was going to include telephone manufacturers and did not.
Apple is a telephone manufacturer.
And they specifically weighed whether or not they were going to make encryption permissible.
They did.
So in other words, under the terms of Calaya, Congress has already ruled and said what Apple is doing is perfectly legal.
And what the FBI, so literally what the FBI did last October was sit there before Congress and with a straight face said, we don't want any more legislation.
And then in what they thought would be a secret request, the judge on his own accord said, oh, hey, let's make this public.
But what they thought was going to be a secret request said, yeah, sure.
We just told Congress today that we're not looking for legislation.
But here, can you make Apple do something that the law doesn't require them to do anyway in secret?
And that judge, Orenstein, made it public.
And that's when we first got to know about this.
The FBI in the San Bernardino case chose to make it public because, you know, they're trying to, again, scream terror, terror, terror so that we all stop thinking.
But the debate should be twofold.
One is, is this even legal given Calaya?
Is the request even legal?
And I'm not a lawyer, but Apple has hired Ted Olson, and I suspect he's going to make a pretty compelling argument that it's not.
But the other thing is, why if Congress has already legislated on this issue, why is the FBI sneaking around and trying to basically pass new law in secret in a bunch of magistrate's courts around the country?
And that is really an abuse of power.
And that's how people, you know, it's bad enough that they want back doors into iPhones so that they can solve car accidents.
But it's also that they're trying to bypass, they're trying to bypass the government as it has been set up.
And that should offend everybody.
Whether or not you think Apple should have to unlock this phone, how FBI is going about doing it is should concern people.
Right.
All right.
Now, so help me out with a couple of metaphors and analogies and things like this, because, you know, for the people who their brains did shut off when they heard the word terrorism, after all, deadly attack, mass murder attack here.
We want to know everything we can.
The FBI is asking Apple to please give us more information.
Right.
I saw Cade Crockford from the ACLU say this is like forcing a locksmith to forge a new kind of skeleton keyers.
I'm not asking him to help us break into this house in order to serve a search warrant on the house.
But this is like a warrant on the locksmith, basically conscripting him into the service of the police in a way that we traditionally just have not allowed that in this country.
Does that sound about like a fair comparison to you?
Well, it's FBI is they're not stupid.
I'll credit them with that.
I mean, you know, they're trying to.
And Jim Comey is one of the worlds.
But, you know, it sort of scares me, Scott, that like he is better at PR than Edgar Hoover was because, you know, oh, he's such a nice guy.
And once we're in a once we're in a hospital steps.
Right.
It.
This is not.
I mean, first of all, many technical experts have said that a quote unquote locksmith would be able to break in this phone so Apple wouldn't have to be involved.
That is how law enforcement got into Apple phones generally in the past.
Good forensic guys.
And I mean, here's the other thing about this San Bernardino request is the FBI picked up the phone on December 3rd.
They went to the county because it technically is owned by the county, which was Farouk's employer and said, hey, by the way, will you change his Apple password now?
Had they not done that, they could have just taken the phone and brought it by the county Wi-Fi, which it probably would have recognized.
And the phone would have updated the iCloud account.
So in other words, a lot of the content they're looking for, if they had just not been stupid, they would have gotten it for free basically anyway.
But they were stupid.
And so now they that now they need Apple's help, but they probably could get a good forensics person to do it anyway.
They just want to force Apple to do this.
Right.
Man.
All right.
This is really something.
Everybody hang tight.
We'll have more with the great Marcy Wheeler.
Empty wheel dot net right after this.
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All right, so welcome back.
I'm Scott Horton.
This is Marcy Wheeler about the fight between Apple and the FBI over their attempt to force Apple to break into this guy's phone, create a whole new operating system to defeat his security flaws.
As Marcy was saying before the break, they're the ones who screwed up.
They could have had his phone update to the cloud and got pretty much everything they needed off of it anyway.
And as she said, they could probably break into the phone anyway.
It's all about setting the precedent that they can force Apple or anyone else to do anything.
So that's kind of where I want to go with this now, Marcy, is about the long term consequences of this.
And you got an interesting block quote from Amy Davidson over at The New Yorker on your blog there where you cite where she talks about some of the future uses beyond how this could be interpreted, you know, going forward, especially as new technologies come out, that kind of thing.
And then you bring up some examples in the past where they've already been getting away with this when it comes to bullying Muslims who don't have lawyers like Apple has lawyers.
So do some of that extrapolating for us.
Remember, so that email provider that Snowden is believed to have used was was forced to turn over the keys for every one of his users.
And he basically shut down because he couldn't he couldn't provide them with what he had sold them, which was an actual somewhat secure email system.
So, you know, it's a really, really interesting question, because I think I think there's very good reason to believe that DOJ has gone to Congress and said, we are going to ask the FISA court this year to approve decryption as part of this year's 702 certificate.
So every year under what people think of as prism, every year, the government has to go to the FISA court and basically say, here's what we plan to do.
Here are the certificates.
Here's how we plan to go after counterterrorism in the upcoming year.
And here, here's the specific here's how we pick targets.
And here's what we're going to ask for from providers.
And there's always some assistance from providers included in that.
And there's really there's no limits on the assistance provided from providers.
And I would be frankly shocked if they hadn't tried to require this assistance from providers in the past or, you know, or at the very least are trying to expand the certificates for this year.
And you know, that would mean what we're seeing with this Apple stuff is the means to force Apple to basically rewrite their operating system such that all you need to do is change the metadata in the operating system to make it applicable for somebody else.
And what it would do is flash out updates secretly to your phone.
I mean, so, you know, if you've got your Apple phone set to automatic updates, then you flash it out and all of a sudden, you know, the NSA can get inside your phone.
And that's sort of where I imagine they're going.
But of course, we're never going to find that out.
Yeah.
And then but so far beyond phones, they can apply this in what kind of other areas of life, maybe it seemed like Amy Davidson was talking about.
They could get people to write genetic code the way they want.
I'm not exactly sure what she meant by that, but well, I mean, look, I mean, the argument that Apple is making and other people are making is your smartphone is pretty close to being your brain, right?
I mean, I guess we're all it's now our crutch.
Our brain doesn't work anymore.
But we keep things that we used to only keep in our brain in our phone or that we used to, you know, used to be passing things like messages or I mean, one of the things the FBI claims they're after in this phone is communications between Farouk and his wife.
Well, you know, if this were a court case, those would be privileged in any case.
But but the notion that we communicate online so much more means that communications between spouses end up being in somebody's, you know, pocket brick rather than in somebody's brain and and there needs to be some some level.
I mean, the FBI would argue that no, once you put anything into digital form, then it then it is entitled to it with a warrant.
But you know, the degree to which we are relying on these things, there needs to be some point at which they say, this is now your private space and it will take an exceptional request to get inside your private space.
But obviously, the FBI doesn't want that because they want cases to be easy.
And in this case, I'm going to remind again, they've already solved it.
They know who caused this.
They knew who killed these people.
You know, this is not about solving a case.
This is about the principle for them.
Well, and it's everything we can do just to hold the line, never mind, you know, winning major victories to roll back the onslaught of, you know, because if it's not this, it'll be as you already pointed out that they've already come up with.
Was it 17 or 18 different excuses to to do the same kind of thing in the past?
I mean, they're just going to keep going.
Right.
And and and that's the thing is, is, you know, there will like could somebody get inside your Google Glass?
Could somebody get inside your if you've got, you know, we're close to the point where we're inserting chips into people's brains for disabilities.
Could somebody access those?
You know, it's it's we're getting close to that point in any case where the FBI is literally asking companies to hack the brain.
And that's the thing is that this code doesn't exist.
So you know that the engineers at Apple specifically designed this this release not to have this code exist.
And now the government is saying and there are, by the way, the other legal aspect of this, which will be interesting, is code of speech.
And so basically, the FBI is is coercing speech out of Apple's programmers.
And that obviously should frighten people as well.
Yeah, I read an interesting take like that, that the First Amendment, there are examples where the courts have decided the First Amendment prevents you from being forced to say something in different circumstances and how this would count.
I think it was a Cato guy that wrote it.
Right.
Yeah.
Okay.
Okay.
So now tell me why torture spy lawbreaker Michael Hayden is taking our side in this or do I misunderstand that?
No, he has for a while.
My guess is somebody is paying him to take our side.
Remember, he's a he's a big contractor now.
And so he tends to say what his clients want him to say.
The first the first big national security guy who came out in support of encryption was Michael Chertoff.
And he's kind of like the Uber national security contractor guy.
So I, you know, I assume somebody is paying him to say this, and I'll take it right.
That's if money is speech and somebody is paying somebody of Hayden stature to say I'll take it.
But I but I also think that I mean, here's here's the analogy I keep coming up with and actually came up used recently with somebody from the FBI is 18 months ago, the biggest threat to America to America, this is crazy, was that the North Koreans had hacked Sony, Sony Pictures, which was a serially insecure company, they kept getting hacked their PlayStations, their company, their financial records, everything hack, hack, hack, hack.
So finally, a really major hack comes along North Korea, allegedly comes in and steals all their stuff.
And all of a sudden, you know, Sony is is is called a critical infrastructure company.
And we have to start engaging in foreign policy to prevent hacks like that from happening after you know, after became really clear, it was already clear that Sony was completely inept for its own cybersecurity.
And um, and and then this year, after the Paris attacks, people were like, well, we think terrorists are using Sony PlayStations to communicate with each other.
And and and they're encrypted.
In truth, they're not really encrypted.
They're kind of gently, slightly locked up.
They're just not very easy to collect metadata from.
But you know, in the course of a year, people went from saying, Oh, my God, you know, Sony is is is critical infrastructure.
If North Korea can hack Sony, then we're all going to die to the next year saying, Oh, my God, we have to have no protection on Sony's products.
We have to let them be hacked at will.
And that should make people think about the need for there being a balance and it's not a balance between privacy and security.
It's a balance between security and security.
You know, in other words, if Sony is not permitted to prevent its users from being hacked because the FBI wants to sneak in and see terrorists possibly discussing an attack, then what we've decided is terrorists are a bigger threat than hackers, even though in the global threat hearing just a couple weeks ago on the 9th, in fact, they all seem to say that that cybersecurity is still the bigger threat.
And so, you know, the smartest thing to do from a cybersecurity perspective is let Apple keep its secure phones.
You know, the terrorist people that that makes them cranky.
But the smartest thing and if if the hackers are the biggest threat, then they should let Apple keep its secure phone and not not and find some other way to solve these crimes that already were solved.
Right.
Yeah.
Again, back to that all important point in this case, no question at all.
Now, we can imagine plenty of hypotheticals where they really wish they knew what some people were saying to each other.
But like you said, hey, there's a world of possibilities out there.
Guys, obey the law and do your job.
That's it.
The Bill of Rights is the law.
All right, y'all.
That is the heroic Marcy Wheeler.
You see why I have her on all the time to explain these wonderful, terrible things to us.
Empty wheel dot net.
Thanks, Marcy.
All right.
Take care.
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