March 2016

The idea that the FBI only cared about unlocking just one iPhone in its recently-abandoned legal battle with Apple was always fiction: The American Civil Liberties Union has discovered at least 63 court orders in 22 states in which the federal government invoked the All Writs Act to compel Apple or Google to help it access data on a password-protected phone in a criminal investigation. The cases run the gamut from minor drug charges to child pornography and involve many different agencies within the Department of Justice, including the FBI, the Secret Service, the Department of Homeland Security, the Drug Enforcement Agency, and the Bureau of Alcohol, Tobacco, and Firearms. In addition, there’s at least one case brought by the Bureau of Land Management, in relation to an alleged marijuana grow operation.

None of the cases are believed to have required Apple or Google to write new software that could have broken the security of other phones, which was a key component of the San Bernardino (CA) case. That the government has asked Apple for assistance in getting into iPhones is no surprise, but seeing the documents gives further clarity on what, specifically, it’s asking for. It’s also the first confirmation that the government has brought an All Writs Act case against Google. “These cases show that the government has an interest in getting this kind of assistance from tech companies in a wide variety of cases,” ACLU attorney Esha Bhandari said. “The government and law enforcement in general have an interest in using the All Writs Act in a wide variety of investigations, including criminal investigations.”

[Commentary] Two legitimate interests of society were at war with each other in the fight between Apple and the FBI over the contents of a terrorist’s iPhone. After seeking in court to compel Apple’s help in unlocking the phone, the FBI has pulled back, saying it found a way to obtain the data without Apple’s assistance. But the larger conflict over encryption of data and its impact on privacy and security is not yet sorted out and must not be neglected. On one side, law enforcement authorities in the United States express a valid worry about the prospect of “going dark” — that manufacturers are building products that encrypt data, either on a network or on the device, in ways that are accessible only to a user, and thus off-limits to law enforcement even with a court-approved warrant. They fear that this could provide a digital safe haven to criminals and terrorists. On the other side, Apple Chief Executive Tim Cook insists that any concession to government intrusion will weaken encryption for all users, at great risk to security and privacy.

Apple did suggest during the debate, without endorsing any specific legislation, that perhaps Congress should take up the issue. The company also expressed some openness to the establishment of a national commission of experts to determine whether the twin imperatives of privacy and security can both be met. Some encryption enthusiasts insist this is a fool’s errand, that any “backdoor” vulnerability handed to government will eventually get into the wild and ruin encryption for all. Perhaps, but if this argument is true, there should be no harm in having it scrubbed and examined by a national commission of the best and brightest minds. Ditto the argument put forward by some in the tech community that law enforcement has many other ways to obtain information these days and is crying wolf when it complains about “going dark.” Finally, a commission might offer Congress suggestions to update federal laws governing communications that date from the analog age. The FBI’s withdrawal from the court challenge offers a respite that should not be wasted.

When Donald Trump got himself out of the entertainment business to run for president, the transition had a few bumpy moments. But if Trump ended some of his industry relationships on bad terms, his responses to a questionnaire sent to the candidates about arts and cultural policy suggest that he and Hollywood share at least one significant priority.

On network neutrality, an issue on which cable companies and content companies such as Netflix are split, Trump, like many of the other former Republican hopefuls, sides with the cable providers. Net neutrality is the idea that Internet service providers should have to treat all the content traveling over their networks the same, rather than charging content providers for faster delivery. It’s a significant priority for companies like Netflix, which worry about the prospect of having to pay up to keep subscribers’ videos streaming smoothly, and a challenge for Internet service providers, which want to make the companies that place the heaviest strain on their networks pay up. Trump’s position on net neutrality? “If one believes in the free market system, then it is hard to imagine how the [Federal Communications Commission] is helping things with rules associated with net neutrality.”

When AOL Chief Executive Tim Armstrong was in Las Vegas (NV) in January for the tech industry’s big trade show, he met a parade of ad buyers in the private suites of the Aria and Cosmopolitan hotels. It was his first real chance to pitch the way AOL—fresh off its sale to Verizon Communications —planned to become a credible threat to Facebook and Google, the juggernauts of digital advertising.

“Data is the oil of the mobile economy,” the 45-year-old Armstrong said at one meeting, apparently. Imagine, he said, if a hotel chain supplied Verizon with a database of its frequent guests. That could be matched up with data on Verizon’s more than 100 million wireless customers, plus AOL’s own data, to target guests with ads for promotional offers. Later, the hotel’s sales data and the telecom giant’s customer data could be cross-referenced to see how many of those people subsequently visited the hotel. AOL won’t have that capability until later in 2016, but it reflects Armstrong’s lofty ambitions. He told the advertisers in Las Vegas that he aims to build the top mobile-media company in the world by 2020, one that reaches two billion users, up from a current 700 million, and generates $10 billion to $20 billion in revenue, said a person familiar with the meetings.