Janine Jackson interviewed Neema Singh Guliani about the Apple‘s legal fight with the FBI for the February 26, 2016, CounterSpin. This is a lightly edited transcript.
Neema Singh Guliani (image: C-SPAN)
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Janine Jackson: By the time listeners hear this show, Apple may have responded to an order from a California federal magistrate judge calling on the company to circumvent security protections to allow the FBI access to the iPhone of San Bernardino attacker Syed Rizwan Farook. The case raises questions about privacy and encryption, about the relationship between technology and the law. If the FBI is permitted this, what next?
It sounds like an abstract argument about government reach, but the worrisome use of technology by the state is not the future but the present, as some communities in particular can attest. Where does the Apple case fit in?
Neema Singh Guliani is legislative counsel at the Washington legislative office of the ACLU. She joins us now by phone from DC. Welcome to CounterSpin, Neema Singh Guliani.
Neema Singh Guliani: Thank you for having me.
JJ: The FBI’s public position was initially that this was just about one phone, that of Farook, and one case, and how could we object to doing everything possible to bring a terrorist to justice? But you have to consider that somewhat unraveled when it was revealed—of course, many knew it all along—that there are other instances. A New York Times story talked about at least nine cases in which the FBI is trying to get Apple to get into people’s phones. The Manhattan DA says he’s got 175 iPhones that he’d like access to. And these are not terrorism; these are drug cases and pornography cases.
So now the line from James Comey and Attorney General Loretta Lynch is, well, it’s just another tool of law enforcement. It’s about catching bad guys, in other words. What is your response to the general line from the court and from the state on what they’re demanding here?
NSG: It’s become very clear that this is not a case about one iPhone, and it’s not a case about national security. The legal precedent that the Department of Justice wants to create in this case would apply to any case going forward. So that’s a drug crime being investigated by, you know, the Baltimore Police Department. That’s a minor misdemeanor being investigated by the NYPD or the LAPD. And so what the government is seeking in this case goes far beyond the power that they’ve ever had in prior criminal investigations and will impact all kinds of criminal cases going forward.
I think it’s very important to understand exactly what the government is asking in this case. So in a traditional criminal case, we recognize that the government can request assistance from someone to turn over, let’s say, information that they have. They can go to a bank and say, “We’d like the records of X customer, because he’s being investigated for a crime.” What they can’t do is ask that bank to go to their customer’s house, break into his home, and get those same records.
And that’s fundamentally what the FBI is asking Apple to do in this case. They are asking Apple to develop software that Apple, one, doesn’t already have and, two, doesn’t want to develop, because they think that it would be harmful to their customers’ security and privacy. And they’re forcing Apple to essentially put their stamp of approval on the software and say, “This is an Apple-made and -approved piece of software,” in order to load it on to the phone that has been recovered.
JJ: I’m really glad you pointed to what is new and different here. Because, in a way, of course, we’re used to the FBI and the state attempting overreach.
NSG: Right.
JJ: Well, when you look at the press, you can find out pretty easily what Bill Gates and Mark Zuckerberg think about the Apple case. And there are lots of reasons for that, naturally. But in part, it’s because privacy and phone privacy and encryption seem to be approached by the media, at least in this case, as a technological issue. How do you see it when you look at it as a civil rights advocate; what are the aspects that come forward for you?
NSG: There are several very important constitutional aspects for what the FBI is asking for in this case, and what they have suggested is necessary. The first is the Constitution protects private citizens from government intrusion into their lives and from government-compelled assistance in cases such as this. We all recognize that there are things that the government can ask of private citizens but things that they cannot force them to do. And by their action right now, what they’re essentially doing is conscripting Apple and saying, “Look, you have to come and write software to break a security feature on Tuesday that you may have built on Monday.” And that’s not what the Constitution allows.
The second element is that they are forcing Apple to put their stamp of approval on this piece of software. That’s essentially Apple signaling something to their customers that’s false. And that should raise red flags, not just for other companies, but also for private citizens. In order to justify this action, the government is relying on a law from 1789, the All Writs Act. That act never contemplated or specifically approved this kind of conduct.
JJ: When we realize that there are lots of instances in which the FBI would like this kind of access, the government would like this kind of access, maybe it’s an easy answer, but why this case? You know, Comey said three different ways, we’re not trying to set a precedent; this isn’t about anything going forward. But then, why choose the case of the San Bernardino attacker?
NSG: I certainly don’t have inside knowledge about what was going on in Director Comey’s mind, or other officials of the FBI.
JJ: Sure.
NSG: But we do know that from leaked emails last year that there were administration officials who suggested that if there was a terrorist attack, that that could shift the debate on encryption and these issues, and that that opening could be exploited. And so we certainly need to approach this certain case with skepticism, especially given what we now know, which is that it’s not just about this one iPhone; there are district attorneys and police officers around the country who are eager to have this precedent set, so that they can begin using it in other contexts.
JJ: The undergirding argument, implicit or explicit, when we have this conversation is that we are trading Fourth Amendment rights, or we are trading privacy, for security. And I’ve just been hearing folks push back against that. For one reason, and most importantly, because giving up privacy doesn’t actually increase security. I mean, that’s not actually our experience. So how do you kind of reframe it so that we’re not talking about, “Well, essentially, if you want to be safe, then you have to give up some of your rights to privacy”?
NSG: I would respond to that by saying numerous experts looking at these issues have said doing what the FBI is asking will actually decrease security. That’s true in two key ways. The first is that the software being developed, if it got into the wrong hands, could allow a hacker or other malicious actor to get into the phones of thousands or millions of iPhone users. And when you develop software, there’s a lot of people look at it, it transits various points, and so you’re essentially increasing the attack surfaces for which someone who had bad intent could get information that would allow them to do dangerous things.
The second way that this is really harmful to our security is that it undermines consumer confidence and trust in software updates. Software updates are essential. When there’s known vulnerabilities or bugs, companies rely on getting these software updates out to their consumers quickly in order to make sure that their private information is not subject to attack by a hacker or somebody else. And if consumers don’t trust in these updates anymore, they’ll simply stop using them. And the results will be that we’ll have lots of software and products out there that are not as secure as they could be.
And I think it’s really important to note that the White House and the administration officials have acknowledged that these security drawbacks exist. So there were leaked White House memos from last year of individuals who’d been tasked to examine this issue, and when they looked at this idea of forcing companies to create essentially fake software to send to their consumers, they noted that it could have a detrimental impact on overall security standards because of these very reasons.
JJ: Is this case not of some special relevance for activists and for communities of color? It seems to me that when it comes to things like surveilling of email lists, there are people who are kind of canaries in the coal mine here. So I think, in a way, it might not be seen as an issue for activists, but it really is. It’s not just about what you as an individual download on your laptop.
NSG: Sure. We certainly can’t view this particular case in a vacuum. And we know, historically, that activists and communities of color have been targeted by improper surveillance. You know, Martin Luther King was a target of FBI surveillance. There are activists today who say that they have been targeted by police departments and had their information improperly accessed. To the extent that we are granting police an additional power, we have to understand that existing biases in police aren’t going to simply evaporate when they get this new power.
JJ: We’ve been speaking with Neema Singh Guliani from the Washington legislative office of the ACLU. You can find their work online at ACLU.org. Neema Singh Guliani, thank you so much for joining us this week on CounterSpin.
NSG: Thank you for having me.
This piece was reprinted by RINF Alternative News with permission from FAIR.