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In its war against encryption, the FBI has found a backdoor to get around congress


For years, the FBI has begged congress to address what it says is a “going dark” problem. In July 2015, FBI director James Comey told the Senate Judiciary Committee law enforcement needs broader powers to force companies to build “backdoors” into their encrypted systems. Members of congress and security experts alike disagree, arguing that it’s impossible to build a backdoor for the FBI without making the technologies we rely upon insecure to attacks from hackers, thieves, foreign governments, and others who seek to exploit our personal information.

Now, what had long been primarily a war of words has burst into the very real, precedent-setting courtroom. On Tuesday, the FBI secured a court order from a federal magistrate judge in California ordering Apple to write new software code that will enable the FBI to download data from an encrypted iPhone. (Here’s a great technological breakdown of the issues; here’s a great legal breakdown. Read the government’s motion to force Apple to hack its products here; the judge’s order here; and Tim Cook’s letter to Apple customers here.)

The phone in question belonged to one of the San Bernardino shooters. It’s unclear exactly what data the FBI needs to get off of the phone that it couldn’t get from Verizon, Facebook, or other providers, but nonetheless its arguments to the court prevailed. Apple has only a few more days to challenge the ruling, which relies upon an 18th century law called the All Writs Act. That statute allows courts to make law in situations where congress hasn’t spoken. So while Jim Comey and his FBI failed to get congress to authorize broad new government hacking powers to weaken digital security, it has, for now, succeeded in gaining a court’s authorization to do the same, ironically based on a statute that gives courts authority to act where congress hasn’t. (The statute makes no mention of situations in which congress hasn’t acted on an issue on purpose.)

The stakes are incredibly high. As my colleague Alex Abdo told DemocracyNow! this morning, in the video below, this legal battle isn’t just about the contents of one iPhone. Indeed, it’s about far more than the contents of every iPhone. If the government emerges from this fight victorious, it will mean that local police and FBI officials can force companies to hack their own products on behalf of the government. That would be devastating not just for US and world technology users, but also for US technology companies, which could no longer guarantee secure products to their users.



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