'Looking survivors in the eye' leads emotional plea for invasive new legal tools.
James Comey, director of the Federal Bureau of Investigation, has posted an open letter on the ongoing dispute with Apple. It's an emotional plea that wraps itself in the horrific nature of the San Bernardino case and its affects on the victims, paints Apple as standing in the way of the investigation, and finishes with a desire for an American conversation on the issues.
The text was originally posted on Lawfare, a web site which states its name refers to "both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others." An interesting choice. The text was also cross-posted on the FBI proper.
At the center of the dispute is the FBI's use of a 200 year old law in the attempt to compel Apple to create a version of iOS that would allow for faster and easier brute-force attacks on passcodes in order to gain access to information on iPhones and iPads. Apple believes such a tool, once created, will be demanded again and again by governments around the world, including those hostile towards their own citizens, and will inevitably fall into the hands of hackers and criminals as well. Comey disagrees.
The FBI's job is to try and get as much as it can through as many legal tools as it has available. The specific request, however, seems at odds with both technology and the best interests of the citizenry. Anyone doubting that should simply read the text below and replace FBI with Chinese Intelligence. China is an even bigger market, and there's nothing to stop them, or any other country, from making similar demands for forensic tools and customer data.
The San Bernardino litigation isn't about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That's what this is. The American people should expect nothing less from the FBI.
The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That's it. We don't want to break anyone's encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn't. But we can't look the survivors in the eye, or ourselves in the mirror, if we don't follow this lead.
Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn't drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.
So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.