During the investigation of the San Bernardino shooting the FBI obtained a company iPhone that was used by Syed Farook, one of the assailants. The investigators obtained a warrant to search the phone, but it’s currently locked and the FBI hasn’t been able to access the encrypted data. This prompted the agency to request assistance from Apple to bypass the phone’s security features, but Apple has refused. Does the FBI have the authority to compel a company to re-engineer its own product in order to undermine the security of its own customers?
In this episode of Digital Detectives, Sharon Nelson and John Simek interview the American Civil Liberties Union’s Speech Privacy and Technology Project Director and principal legal advisor to Edward Snowden Ben Wizner about the legal battle between Apple and the FBI. Wizner begins by explaining The All Writs Act and how it’s being used to coerce Apple, the FBI’s potential objectives in making this request, and what dangers might be present if the FBI prevails. The conversation then shifts to the global implications for all tech companies if the the precedent is set that Apple must aid in helping the FBI get the contents of this phone and what that might mean for the national security of the United States of America – and the privacy of its citizens. Wizner then gives some insights into what it has been like to be the principal advisor for Edward Snowden and what the case has been like for him as a lawyer.
Ben Wizner is the Director of the ACLU’s Speech, Privacy & Technology Project. For nearly fifteen years, he has worked at the intersection of civil liberties and national security, litigating numerous cases involving airport security policies, government watch lists, surveillance practices, targeted killing, and torture. He appears regularly in the global media, has testified before Congress, and is an adjunct professor at New York University School of Law. Since July of 2013, he has been the principal legal advisor to NSA whistleblower Edward Snowden. Ben is a graduate of Harvard College and New York University School of Law and was a law clerk to the Hon. Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.
Digital Detectives: Edward Snowden’s Legal Advisor Sides with Apple in FBI Battle Over Encryption – 3/17/2016
Advertiser: Welcome to Digital Detectives, reports from the battlefront. We’ll discuss computer forensics, electronic discovery and information security issues and what’s really happening in the trenches. Not theory, but practical information that you could use in your law practice. Right here on the Legal Talk Network.
Sharon D. Nelson: Welcome to the 65th edition of Digital Detectives, we’re glad to have you with us. I’m Sharon Nelson, president of Sensei Enterprises.
John W. Simek: And I’m John Simek, vice president of Sensei Enterprises. Today on Digital Detectives, our topic is Edward Snowden’s Attorney on the FBI v. Apple Battle. We’re delighted to welcome as today’s guest, Ben Wizner. Ben is the Director of the ACLU’s Speech, Privacy & Technology Project. For nearly fifteen years, he has worked at the intersection of civil liberties and national security, litigating numerous cases involving airport security policies, government watch lists, surveillance practices, targeted killing, and torture. He appears regularly in the global media, has testified before Congress, and is an adjunct professor at New York University School of Law. Since July of 2013, he has been the principal legal advisor to NSA whistleblower Edward Snowden. Ben is a graduate of Harvard College and New York University School of Law and was a law clerk to the Hon. Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. Thanks for joining us today, Ben.
Ben Wizner: Well thank you for that very generous introduction.
Sharon D. Nelson: Ben, although most people are certainly aware of the ongoing battle between the FBI and Apple, can you give us a brief summary – and I almost want to laugh when I say a brief summary – of the facts and the current status which changes every day in this lawsuit?
Ben Wizner: Yeah, I’ll do my best. I think some people have been surprised to watch this spectacle of the top law enforcement organization in the United States in a heated public battle with the world’s most profitable corporation. This is something that’s new when the FBI director stands up to attack companies like Apple rather than groups like the ACLU. But the issue here is whether companies can create products that are secure against cyber attacks, foreign attacks, essentially create encryption that is so strong that they themselves generally can’t break into it. And this doesn’t dispute between genuine competing values. The FBI has a warrant from a judge to find out what was on the phone of one of the San Bernardino terrorists. Now of course it was partly the FBI’s fault that they’re locked out of that phone, but we can get into those details later. Apple is saying that it designed the operating system in that phone in such a way to make it impossible for the FBI to gain that access. And they did that for a number of reasons but remember that this is not just a domestic dispute. If Apple can turn over the contents of this phone to the FBI, then it could turn over the contents of any phone to the government of China, to the government of Russia or to any others. So in this case the FBI has asked the judge to order Apple to reconfigure its software in order to be able to break into the phone essentially to write new software, to override the operating system that they created. And the legal question before the federal courts in California right now is does the FBI have the authority to compel a company to essentially re engineer its own products in order to undermine the security of its own customers. That’s it in a nutshell. They’re relying on a statute from the 18th century called the All Writs Act that is essentially a gap filler. It allows the government to seek orders, to aid investigations and other authorities. Apple is arguing with the support of many groups including the ACLU that congress in 1879 did not authorize the government to conscript a company to devote its own resources to be conscripted into a law enforcement investigation. It’s simply beyond any authority that the FBI has and more over that even if there were somehow congressional authority for this that it would offend the constitution to require a company to do something like this.
John W. Simek: Ben, recently you were quoted in an article – which I loved reading and I particularly loved the caption that they put on your picture but we’re a family friendly place so I can’t say what that was. But you were quoted as saying that the bill of rights was meant to make government’s job more difficult. Could you explain what you meant by that in the context of the current controversy?
Ben Wizner: Yeah, I think too often in the standard debates about civil liberties and national security – certainly since the 9/11 attacks on this country. The question has always been how can we set the dial in precisely the right place that maximizes both of those values. It maximizes liberty but also maximizes security. I think there’s been this assumption that if something benefits national security that we should favor it. We have to remember that the people who wrote the bill of rights were not trying to make things easier for the government, they were trying to make things more difficult for the government. There is no way to read the 4th amendment, the 5th amendment, the 6th amendment, the 8th amendment, without coming to the conclusion that the goal of this document was to make state power less efficient, not to make it more efficient. That it was written by people who from their own experience were more worried about a government that had too much power over citizens than they were about the government not being able to get a piece of information in a particular investigation. I think that’s very relevant here because I understand from the FBI’s point of view why they would like to use every possible tool they have to get every possible clue they have. But I don’t think they’re taking a long view of this situation. One argument that the FBI is making to Apple, for example, is that because Apple has assisted law enforcement in the past, they should be required to assist them now. What a terrible incentive to create for businesses that if you help, that will be part of the legal tasks for deciding whether you have to help later on. I think also the FBI isn’t thinking about how requiring Apple to break into this one phone will have an effect globally on cybersecurity. We hear so often our national leaders say that cybersecurity might be a greater national security issue for the United States than terrorism. That we may actually have more to lose as a society from theft of intellectual property to attacks on our infrastructure through weaknesses in our cyber defenses than we do from incidents like San Bernardino. I think that’s probably right. And if it’s right, why would we weaken the fundamental architecture of our cyber security by making it more difficult for companies to offer strong encryption in order to aid one investigation where we already know who the perpetrators were and in fact they’re dead. So I think the FBI’s actions here are very, very narrow and they’re very, very shortsighted.
Sharon D. Nelson: I think we certainly agree with you on that and we certainly are worried about the government wanting to – as we see it – chip away at the 4th amendment and maybe some other things as well. So what kind of dangers do you see then present in this case if the FBI prevails beyond what you’ve already told us?
Ben Wizner: Too often the conversation has just been about the FBI’s investigatory needs against the individual privacy of citizens. I think the broader issue here is that it will undermine security in a sense that will actually harm national security that we need to change the ways that we’ve traditionally debated these issues. I think most citizens intuitively think that security and law and order on one side and that individual rights are on the other. In this case, from a broad policy perspective, I think the FBI could win here but at the expense of making it difficult for activists and dissidents and pro democracy people around the world to be able to do their work. There’s a real irony that even as the FBI is siding to undermine encryption in cases like this, the states have been funding encryption around the world to protect democracy activists in the regimes that we hold. So that’s one of the real long term threats, but as you said, we’re going to have to protect the 4th amendment in new ways because of technology and we need to start thinking about what a 21st century 4th amendment looks like. It should be intuitive that the 4th amendment written in the 18th century applies to the 21st century. But the big challenge for us as this society is that surveillance and storage have gotten so cheap that it’s made it possible for the first time in human history for governments to collect and store virtually complete records of our lives. It used to be 25 years ago that if the police wanted to know where you were at a given time or over time, they’d probably have to assign teams of people to follow you around, a great cost. And that cost operated as a kind of constraint. They wouldn’t do that unless they really, really cared. Fast forward to today where one police office sitting at a laptop could track thousands of citizens in real time. So cost has been removed entirely as a constraint on state power. And we’re going to need our legal doctrines and our 4th amendment jurisprudence to keep pace with that kind of technological change.
John W. Simek: I know back when this situation first started they surveyed a lot of the American people. And so many people, I think more than 50%, sided with the FBI. Do you think that was because of the tragic nature of the San Bernardino shootings or do they just fail to understand what’s really at stake here?
Ben Wizner: Both of those things and more. One thing that you can’t call the FBI is stupid. They’ve been waiting for exactly the right situation in which to press this fight. I don’t think they care very much what’s on his phone. I think they want the precedence more than they want the data in this case, and we see that in a lot of ways. We see that a week before this dispute became public, the FBI and Department of Justice had already recruited someone to represent the victims of the San Bernardino attacks in this litigation. So they were already preparing for the public debate that they’re having right now. This is the first time that I’m aware of where the FBI has sought an order under the All Writs Act and done it publicly rather than under seal. So this is something that they want debated publically because they know they’re going to get public sympathy in a case involving public terrorism. What surprises me is that Apple has actually attracted considerable support in this debate notwithstanding how difficult its position is. People have accused Apple of choosing this fight because of its own PR purposes. It’s funny to think that a corporation would benefit from being seen to obstruct the FBI in a terrorism investigation. But some people have leveled that charge against Apple. I think this is a hard issue. I think that it involves a level of technological literacy that most of us don’t have to understand why it shouldn’t be a simple thing for Apple just to unlock this one phone without having dire consequences across the board. I think our community frankly has to do a better job in simplifying the explanation of why that’s the case.
Sharon D. Nelson: Ben, you may be right, but I thought I remembered reading there were a great number of cases filed abusing the All Writs Act. Where they all under seal? Did I just not read that part?
Ben Wizner: They were originally under seal. Some of them have become unsealed since then. But we haven’t been aware of almost all of those cases until it was too late for us to be able to weigh in.
Sharon D. Nelson: Alright, that may be the explanation. Well, I’ve been looking at this case and watching the tech companies slowly wake up to what the international economic implications of this case are. We’ve already seen France make motion to perhaps get some sort of precedent in France with this kind of unlocking being mandatory in France. So how do you see the economic implications and global implications for all of these tech companies if we start heading down this path?
Ben Wizner: I think there are different kinds of financial implications. So obviously, since the Snowden revelation, it’s been very important for US based technology companies not to be seen as conscripted agents of the US surveillance state. And that’s obviously critical if they want to expand into foreign markets. That they not be seen as having either willingly or unwillingly created products that are backdoored to the NSA or to the FBI. And people have said that the tech companies are acting in their economic self interest as if that detracts from the importance of their winning. I don’t frankly care what their motives are as long as the position that they’re advocating is going to protect civil liberties and security in the long term. But I don’t think in the US we think enough about reciprocity and about the precedence that we’re setting. I think our government should have thought a lot more carefully before it started sending armed predator drones out over countries that we’re not at war with because that technology is going to be in the hands of dozens of countries before long. We’re not going to have a monopoly on the technology. It’s not like nuclear weapons where we can prevent proliferation. And the same thing is true here. It’s as if we have tunnel vision and we think that we can create a legal and technological regime where the good guys have access and the bad guys don’t have access; and that’s simply not possible.
John W. Simek: Ben, you talked a little bit earlier about the FBI positioning themselves before and making this case very public. But why do you think they play such a big importance on recruiting the amicus counsel and involving the families of the San Bernardino victims? Is that really going to help them?
Ben Wizner: I don’t know if it will help them. The director of the FBI wrote a blog post for the website Lawfare, which is a place where these kinds of national security issues are regularly debated. I can’t remember any other case where the director of the FBI was blogging about it in real time on an advocacy website. And in that blog post, he said what this boils down to is I can’t look the victims in the eye and tell them that I’m not using every possible tool at my disposal. But there are a lot of times that the FBI doesn’t use every possible tool at its disposal and appropriately so. We have to make decisions that are not just about what’s legal but what’s wise looking at long term consequences. Here, we know that the intelligence community has been waiting for a terrorism case in which it can raise its objections for the more widespread use of encryption. Over the Summer, the Washington Post was provided an email by thumb source from the top lawyer for the director of national intelligence, Robert Litt; very, very, very smart lawyer. And he was lamenting an internal debate that the White House needed to have sided with the advocates of strong encryption over the law enforcement and intelligence officials who wanted to mandate backdoors. But what he said in this email to colleagues is don’t despair. Because if there’s a terrorist attack that occurs, and we can show that encryption either could have helped prevented or is an obstacle in investigation, we have a chance to essentially relitigate this dispute. They were waiting for this kind of opportunity in order to be able to press their broader claim that encryption is causing them to go dark. This is something that society has to confront. What is more important? The surveillance of individual targets in individual cases or the security of the internet globally as a whole? Sometimes there’s going to be a real sacrifice. In this case I don’t think there is. I suspect there’s nothing really of value on the phone the FBI’s trying to get.But that doesn’t mean there won’t be a coast to law enforcement going forward, one that I think we have to pay.
John W. Simek: I agree with you, I don’t think there’s going to be much there either. Before we move onto our next segment, let’s take a quick break.
Advertiser: Does your law firm need an investigator for a background check, civil investigation or other type of investigation? PInow.com is a one of a kind resource for locating investigators anywhre in the US and worldwide. The professionals listed on PInow understand the legal constraints of an investigation, are up to date on the latest technology, and have extensive experience in many types of investigation, including workers comp investigation and surveillance. Find a prescreened investigator today. Visit www.PInow.com.
Sharon D. Nelson: Welcome back to Digital Detectives on the Legal Talk Network. Today our topic is Edward Snowden’s Attorney on the FBI v. Apple Battle. Our guest, Ben Wizner, is the director of the ACLU Speech Privacy and Technology Project, and the principal legal advisor to NSA whistleblower Edward Snowden. Ben, a lot of people have been saying this one request may be reasonable, but just this one request. I certainly know from reading the papers how I would counter that but how would you counter that?
Ben Wizner: I think what you heard the FBI say in the beginning was we’re not talking about China, we’re not talking about Iran, we’re not talking about thousands of phones; we’re talking about one phone. We’re asking Apple to write a software that will help us into this one phone. Well, some people around the country were off message. The same week, the Manhattan district attorney, Cyrus Vance was being interviewed by Charlie Rose and he slipped that he has 170 phones from Apple that he can’t get into and he’s waiting to see how this dispute plays out because if the FBI wins, he’s going to go to Apple and say now you’ve got to unlock these 170. That’s just in Manhattan. The FBI director this week was compelled to admit in congressional testimony that it’s not just about this phone and that if he secures the precedence that he’s seeking, he’s going to be returning regularly to Apple in order to require Apple to write similar software in order to unlock those phones.
Sharon D. Nelson: Well Komi actually acknowledged it would be a precedent.
Ben Wizner: That’s exactly right. This week, Komi testified in congress and was confronted with this question is it just about this one phone or will there be others, and he admitted of course there will be many, many other phones that the FBI will seek access to. He did not acknowledge the obvious point that it won’t just be the FBI, it won’t just be law enforcement around the United States, but it will be by agencies around the world. And that next request might be from the Chinese government because they suspect that that person who works at the US Embassy is not a state department employee but is actually a CIA employee. Or worse yet, a Chinese citizen who they think is providing information to the US government and that’s the phone they want to have unlocked.
Sharon D. Nelson: Horrifying.
John W. Simek: Well, Ben, it looked for a while as if the FBI was playing nice a little bit with the tech companies and sort of downplaying this whole backdoor to the encryption stuff as you mentioned earlier. Do you think that was just a ploy? And maybe you’ve already mentioned this before but what really is their endgame?
Ben Wizner: Yeah I do think it was a ploy. In the mid 1990’s, the FBI persuaded congress to enact legislation to require anybody who builds phone networks to build in backdoor surveillance capability so that anytime the FBI wants to do a wiretap on a phone, they’re able to go to one of those companies and there’s a built in vulnerability in the phone system. At that time, congress expressly withheld that authority from internet platforms and said we’re not going to extend this backdoor to the internet, part because of the very serious cybersecurity problems that we’re talking about today. Multiple times since then, the FBI had advocated amending that statute called Kalida, in order to bring in companies like Apple or Google or Yahoo to handle our online communications. This is no secret that they have been talking about getting this kind of security for a long time. It’s my view that had Snowden not radically transformed the surveillance and cybersecurity debate on a global scale, the FBI may well have prevailed in 2013 or 2014 and finally solving its going dark problem by persuading congress to expand the Kalida statute to include these kinds of communications. So this isn’t something new. We know from Komi and his predecessors that this is the kind of authority they have long wanted for two decades.
Sharon D. Nelson: I’m going to take my next question and I’m going to split it into two. And I know you said you can handle anything, so I hope I don’t make you eat your words is. So my question – which has been changed by current events – is can you explain briefly what All Writs Act is and why the government is using it? And then why it’s so important to find out of the FBI asked the NSA to assist them in this case. And of course that’s been changed a little bit because we now know the FBI asked the NSA to assist them in this case. What we don’t know – I don’t think, and you may know more than me – but what I think we don’t know is whether the NSA refused to help or whether the NSA was equally confounded by Apple’s encryption.
Ben Wizner: Let’s start with the All Writs Act. As I said before, it was enacted in 1789. It’s what we would call a gap filling statute rather than being an independent source of authority itself. So what the act does is it allows federal courts – and now I’m quoting from the statute – to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. It’s fairly vague. But what I think it allows is for courts to issue orders that effectuate other orders or other powers that have some independent basis in law. So it’s a limited authority. The idea is there are going to be times when congress hasn’t thought of everything and we’re going to need to have something that fills up the gaps that allows courts to be effective. But the Supreme Court and other courts over the years have added additional constraints onto the All Writs Act, I think for constitutional reasons just because they were worried that courts might essentially exercise power that had not been granted to them by congress which would have separation of powers problems. So one of the things that the FBI is required to demonstrate in order to secure the authority of the court here is essentially that they have exhausted other means. This is the only way they’ll be able to get what they need in this investigation. There’s reason, I would think strong reason, to believe that this is not true. That as you suggested in your question, the kind of hacking that would be required to achieve this. While far from trivial, it’s not something that anybody can do in their basement. It’s something that the NSA almost would certainly would be able to do. And it’s not that we want the NSA involved in a lot of domestic criminal investigations, surely we don’t. But this is an investigation that has potential ties to global terrorism. So I don’t think that there would be any legal barriers from the FBI seeking the technical assistance of the NSA. And I think the reason why they didn’t seek it in the case – if they didn’t, we don’t know, they haven’t said-
Sharon D. Nelson: Well, excuse me for interrupting, but in the congressional testimony apparently that’s where Komi said that yes they were asked. But that’s all he said.
Ben Wizner: He said he asked, well okay. It would surprise me very much if the NSA – which every year hires the nation’s most talented engineers and mathematicians and has virtually unlimited budgets – had represented the FBI that this was beyond their capability. I would be shocked if the NSA said that to the FBI with a straight face. It puts Komi in a difficult position though. Because if he can get it from the NSA, then he has no legal basis receding a court order to Apple to require them to do it. So that’s what’s going on in this case. It’s potentially relevant to the FBI’s authority to conscript Apple whether they have some other means of doing this. And surely it might be easier for Apple to hack its own product by writing software than it would be for a team at NSA to do it, but I don’t think that’s enough under the All Writs Act.
John W. Simek: That’s a fascinating theory. I hadn’t thought about it that way. Ben, I think everyone is interested in your role as Edward Snowden’s principal legal advisor. And I’m sure that a lot of folks have lost sight of Mr. Snowden’s current legal status and what may make it possible for him to come back to this country, which he said he’s wanted to do. And I know Sharon and I have personally been following Edward Snowden in this whole thing through the years. But can you talk about him coming back and what this case has been like to you as a lawyer? And I’m sure people are interested in how much of your life has been consumed by this over the years.
Ben Wizner: It certainly has not been a conventional representation, he’s not a conventional client for a variety of reasons. For one thing, before he and I ever met, he posted a video of himself on the Guardian website confessing to the charges for which he had been accused. So there hasn’t been a whole lot that could be done to mitigate that. The representation is much more about helping him to be an effective global advocate in the debate that he helped to launch. And eventually setting the stage for his ability to return without having to face decades in prison for what I think was an act of conscience. Now as I think that all listeners well know, he’s living in Russia. He has a three year legal residency there which is roughly the equivalent of what we would call a green card here – although it’s renewable at three years. Very regrettably, there are only two places in the world where he can be right now. One is where he is and the other is in a maximum security prison in the United States. We don’t have any plan C at the moment, although it’s my hope that some other option will emerge from him. He has said that he would like to return to the United States. He’s also said that he doesn’t believe that he should have to plead guilty to felonies and lose his civil rights as the consequence of launching a debate that resulted in fundamental changes to US law. That resulted in congress for the first time since the 1970’s restricting rather than expanding the authority of the intelligence community that resulted in a federal appeals court in New York striking down one of these programs as a legal that resulted in what the president has said is a debate that has made the country stronger. So obviously, team Snowden does not see eye to eye with the department of justice about what the appropriate resolution of this case would be right now, that’s one way of putting it. But there have been developments. The European parliament voted this year to call on all the countries in Europe not to extradite Snowden where he’d show up in one of those countries. While it’s not legally binding, it demonstrates just how he is seen around the world and really I think how much harm it would do to the United States if it were to get its hands on Snowden if it were actually to try to do something like prosecute him for felonies at this point. He was shortlisted for the Nobel Peace Prize. He’s really seen around the world as an icon about this debate and not just surveillance but about the future of democracy. And in the last two and a half years, I think he has maintained a very admirable public presence. He has not succumbed to the temptations of celebrity. You don’t see him taking advantage of his fame. Instead, he has been speaking to audiences of students, of technologists, of activists, and really talking about the same theme: how can we ensure that our free societies are able to survive and thrive in an era of mass surveillance.
John W. Simek: For what it’s worth, Ben, Sharon and I are on your team too.
Sharon D. Nelson: More than that, more than that. We hope when you next have the chance to talk to Mr. Snowden that you convey he is very much a whistleblower hero to us. And when we lecture about the NSA and Edward Snowden, we always convey our sentiment to the audience which is not always received well, but that’s okay; it’s part of the deal.
Ben Wizner: Yeah. Well I can assure you that I don’t have to convey that because when this podcast is broadcast, he will hear it.
Sharon D. Nelson: Well, then thank you Mr. Snowden. A lot of us are very much enamoured of the constitution which I keep in the right hand drawer of my desk and you have upheld it beautifully. I am an admirer as is my husband and partner, John. Ben, I want to thank you so much for joining us today, this is really an interesting case. We’ve enjoyed your comments about representing Mr. Snowden, but of course the focus today was on Apple vs. the FBI. Your remarks are extremely insightful and what way beyond what I think most people know so if people can get a real education when they listen to this podcast, which is wonderful. So thank you so much for taking the time out of your hectic schedule to join us.
Ben Wizner: It’s really been my great pleasure. Thank you so much.
John W. Simek: Well, that does it for this edition of Digital Detectives; and remember, you can subscribe to all of the editions of this podcasts at LegalTalkNetwork.com, or in iTunes. if you enjoyed this podcast, please review us on iTunes.
Sharon D. Nelson: And you could find out more about Sensei’s digital forensics, technology and security services at www.senseient.com. We’ll see you next time on Digital Detectives.
Advertiser: Thanks for listening to Digital Detectives on the Legal Talk Network. Check out some of our other podcasts on LegalTalkNetwork.com and in iTunes.