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  2. March 2016

March 2016

Feds drop fight with Apple, But the larger battle between privacy and security is far from over

The federal government dropped its bid to force Apple to help unlock an iPhone used by a shooter in 2015's terrorist attack in San Bernardino (CA) saying the FBI has succeeded in accessing the data on the device. The development scuttles — for now — what was shaping up as a momentous court fight between the US government and technology companies that are increasingly turning to encryption to secure phones and computers against the prying eyes of both hackers and law enforcement. But the Justice Department refused to rule out taking other tech companies to court to force their aid in cracking encryption used by terrorists or criminals. That means this pause in the struggle between privacy and security is most likely just a ceasefire, advocates on both sides of the debate agreed.

"We're gonna be right back here in six months or a year," said Chris Soghoian, principal technologist at the American Civil Liberties Union. "There will be a future phone that will be more secure, with a new version of [the phone's operating system]. If the government cannot hack it they'll go right back to the courts." Senate Intelligence Chairman Richard Burr (R-NC), a major critic of tech companies that refuse to cooperate with law enforcement, agreed that the Apple-FBI skirmish was just one instance of a larger struggle that remains unresolved. "This is just one example of what I fear we will face in the future many, many times," Chairman Burr said. Future cases will occur "not only in terrorism but in regular criminal prosecution, where we've got to get into electronic devices."

Rep Issa Responds to FBI Successfully Opening iPhone in Apple/FBI Dispute

Responding to news that the FBI has successfully opened the iPhone from the Apple/FBI dispute and that it will abandon its bid to obtain a court order mandating that Apple unlock the iPhone, Rep Darrell Issa (R-CA) released the following statement:

“This lawsuit may be over, but the Constitutional and privacy questions it raised are not,” said Rep Issa. “Those worried about our privacy should stay wary — just because the government was able to get into this one phone does not mean that their quest for a secret key into our devices is over. That the government was able to gain access to the phone without Apple’s help is certainly preferable to issuing a wide-reaching court decision that would grant the government backdoor access into every American’s phone and other devices, but the fundamental question over how we, as citizens, expect our government to be able to access — or not access — our personal information still remains. There most certainly will be other cases and, as we debate these issues as a nation, we must remain critical of government attempts to take advantage of sensitive situations to amass greater government power and control which are almost always at the expense of our personal freedom and privacy.”

Apple declares victory in battle with FBI, but the war continues

Apple has declared victory in its battle against the FBI, after the government announced it had found a way into the San Bernardino (CA) killer’s iPhone that did not require the manufacturer’s help. The company said in a statement: “From the beginning, we objected to the FBI’s demand that Apple build a backdoor into the iPhone because we believed it was wrong and would set a dangerous precedent. As a result of the government’s dismissal, neither of these occurred. This case should never have been brought.”

In its statement, Apple fought back against the government’s framing of the issue as one of national security conflicting with personal privacy. It said: “We will continue to help law enforcement with their investigations, as we have done all along, and we will continue to increase the security of our products as the threats and attacks on our data become more frequent and more sophisticated. “Apple believes deeply that people in the United States and around the world deserve data protection, security and privacy. Sacrificing one for the other only puts people and countries at greater risk.” But the company acknowledges that the FBI’s withdrawal is likely to be only the end of a battle, not victory in the longer war. “This case raised issues which deserve a national conversation about our civil liberties, and our collective security and privacy. Apple remains committed to participating in that discussion.”

The Apple/FBI standoff in limbo: What’s next?

[Commentary] Benjamin Wittes of the Brookings Institution has charged that Apple’s position represents “The Very Definition of Digital Age Chuitzpah.” From his perspective, Apple — having refused to help the FBI de-encrypt the San Bernardino (CA) iPhone — should not expect any assistance from the government: “Apple has specifically put itself in an adversarial position vis a vis law enforcement . . . it is cheeky in the extreme to demand that the government now stab itself in the back and give up the fruits of the search its critics demanded it conduct.” Others argue strongly that the government has a responsibility to protect US citizens from software flaws that would expose them to repeated theft of private information. Underlying the new controversy, there is the legal question of what responsibility the government itself assumed regarding so-called zero-day flaws as a result of the Snowden revelations.

In 2014, in response to charges that the NSA sat on software flaws for many months (which the NSA vehemently denied), the Obama Administration introduced a new process, known as the Vulnerability Equities Process, for deciding when and under what circumstances “newly discovered” vulnerabilities will be kept secret. The details of the process remain secret, but it is likely that Apple will cite these rules if it now sues the government to obtain information regarding the San Bernardino iPhone flaw. The Apple-FBI battle is only at its midpoint, but with the introduction of the immensely complicated zero-day option, it is taking unexpected turns.

[Claude Barfield is a former consultant to the Office of the US Trade Representative]

Apple likely can’t force FBI to disclose how it got data from seized iPhone

The US government isn't saying whether it will divulge to Apple the method it used to access the locked iPhone seized by one of the San Bernardino (CA) shooters. The iPhone has been at the center of a bitter dispute between Apple and the Federal Bureau of Investigation. But that legal battle—in which a judge last month had ordered Apple to write code to assist the authorities in unlocking the phone—came to a seemingly abrupt halt when the government said it "successfully accessed the data" on the phone without Apple's assistance. A federal law enforcement official requesting anonymity said that the US government would not discuss whether it would reveal the method. "We cannot comment on the possibility of future disclosures to Apple," the law enforcement official said. Just a week ago, Apple said that it would insist in court on knowing everything about the vulnerability.

President Obama scolds media for enabling Trump

President Barack Obama spoke directly to political journalists with a message that was part pep talk and part scolding to the Fourth Estate. President Obama delivered the keynote address at a dinner for 2016’s winner of an award for political reporting named for the late Robin Toner, who served as The New York Times’ top political correspondent before her death in 2008, shortly after President Obama’s historic election. President Obama used the speech as yet another chance to decry the politics of Donald Trump, this time highlighting the media’s role in the mogul’s fact-indifferent campaign.

“It’s worth asking ourselves what each of us — as politicians, as journalists, but most of all as citizens — may have done” to create the polarized political atmosphere, President Obama said. “Some may be more to blame than others for the current climate, but all of us are responsible for reversing it.” The job of a political reporter, he said, is “more than just handing someone a microphone.” President Obama continued, “It’s to probe and to question and to dig deeper.” President Obama expressed sympathy for reporters who are grappling with the changes in their industry, acknowledging that market forces and changing technology make it harder than ever for those driven by a sense of small-D democratic mission to fulfill it. “The choice between what cuts into your bottom lines and what harms us as a society is important. You have to choose which price is higher to pay, which cost is harder to bear,” President Obama said.

No, the media didn’t create Trump

[Commentary] One of the more absurd things being said about the Donald Trump phenomenon is that the media created it. For the record, we didn’t. First of all, there is no “we.” The news media operate in what should be every conservative ideologue’s dream environment: an unfettered free market. Outlets compete every day — actually, in the Internet age, every hour — to provide consumers with information they need and want. Every editor and news director strives to beat the competition, and the fact is that audiences have decided they need and want to know about Trump.

The news media, it seems to me, are guilty only of reporting the news — which is that a candidate who has never held elective office, and who displays neither the base of knowledge nor the temperament necessary to serve as president, is leading all comers for the Republican nomination. Commentators should spend less time flattering themselves that the news media have the power to make such a thing happen — and more time trying to understand why Trump is succeeding.

'Spectrum extravaganza': Auction gets underway

A major federal wireless spectrum auction got underway March 29. Broadcasters have until 6:00 pm to commit to some level of participation in the auction. A commitment does not guarantee that a company will ever sell its spectrum, however. The process resembles a Dutch auction, in which sellers are knocked out over time.

FCC Chairman Tom Wheeler tweeted triumphantly about the beginning of the long-awaited auction, cheering the team that developed the process: "This morning we began accepting initial bid commitments in the #IncentiveAuction. Hats off to Gary, Howard, and the entire auctions team!" This is the first time the FCC is allowing broadcasters to essentially sell their spectrum through an auction. If all goes as planned, broadcasters will be compensated for going off the air or moving channels. The wireless industry and other buyers, meanwhile, will get access to high-quality spectrum that is crucial to the delivery of the mobile data on smartphones. Chairman Wheeler has said he expects the auction to be "a spectrum extravaganza."

FAB Telemedia Files New Spectrum Auction Challenge

Free Access & Broadcast Telemedia (FAB), joined by other Low Power Television stations (LPTV) not getting to participate in the Federal Communications Commission's spectrum auction, have gone to the US Court of Appeals for the District of Columbia to file a new challenge against the auction. The petition comes a day before the spectrum auction officially begins March 29.

FAB et al. are challenging the FCC's order establishing the auction, and the rules regarding digital low power TV and translators that was published in the Federal Register Jan 29 and the Third Report & Order, published in the Federal Register on Feb 1. They say the orders are "arbitrary and capricious" and thus violate the Administrative Procedures Act. They argue that the orders failed to comply with the spectrum auction legislation's directive that the FCC not "alter the spectrum usage rights of low-power television stations," and violated the Regulatory Flexibility Act by "failing to describe feasible, efficacious steps the agency has taken, and each alternative considered, to mitigate the significant adverse impact of its rules on low-power television broadcasters as small entities. FAB has taken aim at other portions of the FCC auction in the DC federal court. Oral argument is scheduled for May on that challenge, but the court denied its request to stay the auction start pending that argument.

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