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FBI v. Apple: One year later, it hasn’t settled much

Taylor Armerding | Jan. 31, 2017
The brief but high-profile battle a year ago between the FBI and tech giant Apple over unlocking the iPhone of a terrorist never got settled by the courts. And that leaves the battle over surveillance v. personal privacy very much unresolved

Cardozo said as far as he knows, that case is currently dormant.

Of course, unlocking or decrypting devices are not the only forms of government surveillance that continue to be contentious and that have not been settled. One is the use by police departments, for more than a decade, of the Stingray – a device that “impersonates” a cell tower and thereby monitors cell phone traffic in a given area.

The manufacturer, Harris Corp., has fought to keep information about it secret, arguing that any information about it will help criminals. But it amounts to mass surveillance without a warrant – police departments frequently deploy it without a warrant, and gather information from any users in the area of the device.

There is also the change in Rule 41 of the Federal Rules of Criminal Procedure, which took effect this past Dec. 1 and allows any US judge – even a magistrate – to issue search warrants that give the FBI and law enforcement agencies the authority to hack multiple computers remotely in any jurisdiction, including outside the United States.

But, as Cardozo said, while concerning those forms of surveillance are different from the Apple case, in that they don’t require a company to, “subvert its security.”

And a high-intensity battle over that may be in the works.

From Congress, less than a month after the FBI withdrew its complaint, the Senate Select Committee on Intelligence Chairman Richard Burr (R-N.C.) and Vice Chairman Dianne Feinstein (D-Calif.) issued a draft of what they labeled the "Compliance With Court Orders Act of 2016."

The draft, which called for a mandate that, “all entities must comply with court orders to protect Americans from criminals and terrorists,” was never filed as actual legislation. But it would have required that, “covered entities,” which included, “device manufacturers, software manufacturers, electronic communication services, remote communication services, providers of wire or electronic communication services, providers of remote communication services, or any person who provides a product or method to facilitate a communication or to process or store data,” comply with court orders to turn over data in an intelligible format.

Feinstein said at the time in a press release that the proposal was not intended to undermine privacy, but simply protect the public. “We need strong encryption to protect personal data, but we also need to know when terrorists are plotting to kill Americans,” she said.

But it drew broad and loud condemnation from privacy advocates and technology experts, who said requiring a backdoor into devices would undermine security for all devices. Julian Sanchez, founding editor of Just Security and a senior fellow at the Cato Institute, called it "insanely misguided."


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