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Privacy issues hit all branches of government at once

Matt Hamblen | March 16, 2016
Apple vs. the FBI, the FCC's broadband privacy bid, and a security commission bill in Congress are all being weighed

While much of the concern over encryption and privacy rose out of the mass shooting attacks in Paris and San Bernardino, the recent deliberations before all the major branches of government can also be tied to the election calendar, analysts noted.

FCC commissioners and officials at the Department of Justice, the FBI and other security agencies are appointed by the president, and Barack Obama's term ends in January. The same goes for 435 members of the House and one third of the members of the Senate.

In the judiciary branch, the Apple-FBI case -- and others -- could drag on well past January. If the case heads to the Supreme Court, the appointment and confirmation of a ninth justice to replace recently deceased conservative Antonin Scalia, could have bearing on the outcome.

In June 2014, the high court ruled unanimously in favor of civil liberties and personal privacy in the landmark Riley v. California case. That ruling held that police may not search digital information on a cell phone without a warrant, even if the phone was seized from an arrested person. Some legal scholars see that case as having a bearing on smartphone privacy cases, since there is so much personal data, such as financial and health information, contained on a smartphone.

Potential contradictions

While the FBI and other agencies are pushing for access to a smartphone that was specifically designed by Apple to protect personal information, other government actions, like the one before the FCC, are heading in the other direction.

"The FCC plan is right on the mark for protecting consumer privacy … but it is also in direct contradiction in spirit to what the FBI is asking for from technology companies," said Avivah Litan, a longtime security analyst at Gartner, in an email.

"There is a ton of rich data at ISPs that can be used to identify and track terrorists and criminals. In fact, this data is more fertile than what is on a personal smartphone because it reveals networks and connections that involve crime or terrorist rings," Litan added.

Given that a terrorist or a criminal could easily resort to using a prepaid burner phone, (a phone briefly used and then disposed and replaced) — as happened with two other phones in the San Bernardino attack — Litan suggested that going after smartphones protected with encryption might not be the most effective course for the FBI.

"The government should accept that encryption advances are well underway, so trying to force Apple and Google to open backdoors for them is a futile exercise," Litan said. "The cat is already out of the bag," she wrote in a recent blog.


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