Web Video: Judge’s order to Apple over attacker phone encryption unlocks privacy concerns

Feb. 18, 2016 AT 11:04 a.m. EST

Since the San Bernardino attack, the FBI has been trying to read the contents of a cell phone used by attacker Syed Farook, made impossible by encryption. Now Apple CEO Tim Cook is rejecting a federal court order to create software to unlock the device. Gwen Ifill talks to Stewart Baker, former assistant secretary of Homeland Security, and Nate Cardozo of the Electronic Frontier Foundation.

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Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

GWEN IFILL: The battle over privacy vs. security is back front and center, as Apple digs in against the FBI and the courts over the issue of access to data on its phones.

December 2, 2015, that’s the day Syed Farook and his wife, Tashfeen Malik, went on a murderous rampage in San Bernardino, California, killing 14 people. Hours later, they were, in turn, killed by police. Ever since, the FBI has been trying to read the contents of a cell phone Farook used.

JAMES COMEY, FBI Director: We still have one of those killers’ phones that we have not been able to open. And it’s been over two months now. We’re still working on it.

GWEN IFILL: Last week, FBI Director James Comey told a Senate hearing that the Apple iPhone’s encryption has made it impossible for the agency to access its content.

Now a federal judge in California has ordered the company to create software that will do just that. But Apple CEO Tim Cook forcefully rejected that order early yesterday, writing in a letter addressed to Apple customers: “In the wrong hands, this software, which doesn’t exist today, would have the potential to unlock any iPhone in someone’s physical possession.”

White House Press Secretary Josh Earnest disputed that, saying the government wants access only to the single device associated with Farook.

JOSH EARNEST, White House Press Secretary: We’re not asking Apple to redesign its products or to create a new back door to its products. This is a much more specific request that the Department of Justice has put forward.

GWEN IFILL: Apple stepped up its protections after NSA leaker Edward Snowden exposed government surveillance of phone traffic in 2013.

One feature can even erase the iPhone’s contents after 10 failed attempts to unlock it. Prosecutors say they are worried that this feature could be on the phone Farook used. And unless Apple devises a way to unlock it, they could lose all its data. The company now has five days to make its formal response in court.

Now for a look at the wider stakes surrounding this case, we turn to Nate Cardozo, a staff attorney who focuses on digital civil liberties for the Electronic Frontier Foundation. He joins us from San Francisco. And Stewart Baker, former assistant secretary of homeland security under George W. Bush administration and former general counsel at the National Security Agency. He’s now in private practice at Steptoe & Johnson.

Stewart Baker, Tim Cook says that building this access, this back door access to the iPhone, as he describes it, would permanently weaken privacy. Is he right?

STEWART BAKER, Former Assistant Secretary, Dept. of Homeland Security: No, I don’t think he is.

The order says you must defeat this one security feature, which is the automatic erasing of all the information on the phone. And that’s not building a permanent back door into anything. That’s one phone, one order, one security feature.

GWEN IFILL: So, Nate Cardozo, if it’s just one phone, one order, one security feature, what is the huzzah all about?

NATE CARDOZO, Electronic Frontier Foundation: Well, it’s not about one phone and it’s not about one security feature.

The FBI chose this case to get the precedent, right? We know who the shooters were. We know who they were talking to. The FBI already has the metadata. They chose this case because they want precedent that they can order a company to design a particular feature at their whim.

So, when you hear Stewart or the White House press secretary say it’s only this one phone, that is simply disingenuous.

GWEN IFILL: Well, are we talking about precedent here, Stewart Baker?

STEWART BAKER: Well, there is longstanding precedent, 200 years old, that says that if someone has an obligation to help law enforcement to take action, then the government can order other people to help that person carry out his obligation.

If somebody jumps into a cab and says there is a bank robber up ahead, follow that car, the phone — the cab company has an obligation to follow that cab.

GWEN IFILL: What is the government standing to make such a request like this?

STEWART BAKER: So, there is an All Writs Act that has been around for almost 200 years that says that essentially the government can ask someone who is in a uniquely — unique position to help to assist in carrying out an obligation that law enforcement has.

GWEN IFILL: Nate Cardozo, what slippery slope do you envision here?

NATE CARDOZO: Well, it is more than a slippery slope.

Stewart, as you well know, no court in the United States has ever approved an order of this breadth under the All Writs Act. No court has ever ordered an American company to compromise the security of all of their customers. No court has ever ordered a safe maker to make a master key.

And the courts that have addressed it, the Inray (ph), the company, case that, I’m sure, Stewart, you are aware of, the court found that OnStar could not be ordered to subvert its emergency phone system and turn it into a wiretap act.


NATE CARDOZO: This isn’t just — this isn’t just a slippery slope. If the FBI is permitted to get the order in this case, that is it. They will be permitted to get a back door order in every case going forward.

And more than that, Apple will be unable to resist identical demands from China, from India, from Russia. And that is the end of secure devices.

STEWART BAKER: I have to say that the concern here that Apple has is, they have said this phone cannot be cracked. And now it turns out that may not be true. And they would like to suppress that possibility, because they’re afraid China or Russia might order them to use that capability.

China and Russia are perfectly capable of ordering Apple to do that tomorrow, whether they have help from a court in this case or not.

GWEN IFILL: You talk about China and Russia. And I want to ask you both this. How — since you brought it up — which is, how do international actors see this kind of discussion that we’re having here? Does it make us look weak?


NATE CARDOZO: I think authoritarian regimes around the world are salivating at the prospect of the FBI winning this order.

If Apple creates the master key that the FBI has demanded that they create, governments around the world are going to be demanding exactly the same access.

STEWART BAKER: Whether or not they do that in response to this order, if it’s possible to build that capability, then the Russians and the Chinese are going to order Apple to do it sooner or later, and probably sooner, whether or not the United States tells Apple to do this.

GWEN IFILL: Can I ask you both to be — to make one thing clear? Do you both agree that Apple is capable of doing what they are being asked to do and they’re just resisting it on principle, Nate Cardozo?

NATE CARDOZO: We think that Apple is capable of doing it for this generation of phone. The phone at issue is an iPhone 5c, which I guess is two generations back at this point. The iPhone 6 and the iPhone 6s, it is our belief that Apple is probably not capable, at least not capable of using this exact technique to unlock.

But we think they are capable of unlocking the 5c.

GWEN IFILL: And you think that is true, Stewart Baker?

STEWART BAKER: That is what it appears from what Apple has said, that they think they can do it. They choose not to do it, notwithstanding the stakes for terrorism in San Bernardino.

GWEN IFILL: So, if you are the owner of one of these phones which could be unlocked if Apple decided to go along with this, how much do — how worried should you be, Nate Cardozo, that your privacy is about to be compromised?

NATE CARDOZO: Well, you know, every individual should create, should do their own threat assessment.

If you have particularly sensitive data, if you are a human rights worker in Syria, if you are an LGBT activist in any country around the world where you may be persecuted for your orientation or beliefs, make sure to tune up your security in response to this. Use a pass code longer than four digits.

GWEN IFILL: Well, I hope that everyone is doing that anyway.

Stewart Baker?

STEWART BAKER: Yes, I — certainly there are times when everyone wants to worry about security. But the idea that the desire for security could trump a lawfully obtained search warrant to find out whether we’re at risk of other people who conspired with the San Bernardino shooters right now strikes me as odd.

And for Apple to say well, it interferes with our business model and our consumer trust to help the U.S. government find out about this possible additional attacker doesn’t make any sense.

GWEN IFILL: This security vs. privacy argument, it sounds to me like it is just going to continue, Nate Cardozo

NATE CARDOZO: You know, it’s not security vs. privacy. This is security vs. surveillance. This is security vs. security.

Before Apple instituted this level of encryption on devices, when devices were stolen, they were susceptible to any run-of-the-mill hacker opening it up. And that is what the FBI wants Apple to return to? That’s crazy.

GWEN IFILL: OK. Well, we’re going to have to leave it there for now.

Nate Cardozo of the Electronic Frontier Foundation, and Stewart Baker, former deputy assistant secretary at Department of Homeland Security, thank you both.


NATE CARDOZO: Thank you.


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