02 March 2016

Strauss Center Director and Univeristy of Texas Law Professor Bobby Chesney recently weighed in on the national conversation about personal device encryption and national security. Last week, the FBI took Apple to court and demanded they unlock an iPhone 5C used by San Bernadino shooter Syed Rizwan Farook. This specific case, Chesney argues, is occurring in the wider context of “going dark”.

The FBI fears that technological advances in encryption will reduce or eliminate the FBI’s capacity to execute search warrants on digital devices. Specifically, the phone may have an auto-delete function enabled that would activate after ten incorrect passcode attempts and erase the information the FBI is looking for. The Department of Justice requested that Apple create a custom software solution for this specific phone that would disable auto-delete and allow the FBI to run passcode combinations electronically, which is usually how they access devices. Apple has appealed the demand in a much-circulated letter from its CEO Tim Cook.

In his post “Apple vs FBI: The Going Dark Dispute Moves from Congress to the Courtroom” on Lawfare Blog, Chesney examines both sides’ claims within the context of the “going dark” debate. While the FBI is concerned it will soon be unable to access information vital to national security, Chesney identifies two warnings in Cook’s response. First, the new decryption software would be vulnerable to abuse. In his public letter, Cook warns of a government that uses it for unlimited access to personal data. Chesney proposes that a compromise by which Apple maintains close control over the software, and the government must petition for its case-by-case use, may be an alternative. Second, once invented, the software could be “released into the wild” and abused by other actors. Chesney cautions that the risk of the technology leaking to rogue actors or enemy states is unknown, but should be considered seriously.

With legislation on the topic unlikely to move in the near future, this case will be decided by the Courts. As Chesney finished his post – “Stay tuned, this is bound to get very interesting.”

For more information on the topic from the Strauss Center, you can find recordings from our  "Frontiers of Cybersecurity Policy and Law" conference, and join us on March 24 for a discussion on "Encryption, Security, and Privacy" with Columbia University’s Professor Steven Bellovin.