Apple CEO Tim Cook.
Photo by Justin Sullivan — Getty Images
By Jeff John Roberts
November 18, 2017

The Justice Department and Apple have been locked in a bitter fight for years over the company’s encryption system, which allows consumers to prevent anyone —including law enforcement—from opening their devices without permission. That’s why a security story this week should be getting more attention than it has.

Titled “Yup: The Government Is Secretly Hiding Its Crypto Battles In The Secret FISA Court,” the story appeared on the well-regarded security blog EmptyWheel, and suggests the Justice Department is using a legal backdoor to force open software backdoors at companies like Apple.

The details are complex and require some familiarity with the FISC, a closed court that oversees top secret intelligence operations, and with Section 702, an amendment to the Patriot Act that permits certain forms of warrantless surveillance. But the gist of the story is this: The Justice Department may be relying on an annual approval process at the FISC to compel “technical assistance” from Apple and others, and this assistance may include the breaking of encryption.

The EmptyWheel speculation is based on a Section 702 amendment, proposed by Sen. Ron Wyden (D-OR), a noted privacy hawk. The amendment appears intended to check the government’s use of “technical assistance” as an end-run around due process:

Wyden’s bill makes it clear he’s concerned that the government would (or is) making technical demands without even telling the FISC it is doing so. His bill would explicitly require review of any technical demands by the court […]

I suggested the most likely use of such a “technical assistance” demand would be requiring a company (cough, Apple) to back door its encryption.

This is significant because Apple threw down with the FBI last year in a highly-publicized court case about an encrypted iPhone belonging to a dead terrorist. That case fizzled out after the FBI found another way to break into the phone, but the issue has bubbled up again over an iPhone owned by the Texas church shooter—the second iPhone has newer software the agency reportedly can’t crack.

The upshot is that, even as the FBI battles with Apple in public over iPhone encyprtion, other agencies like the NSA may be forcing Apple to break its encryption in secret through Section 702 orders. Even though Section 702 orders are notionally aimed at foreigners, there are numerous loopholes that can sweep in Americans.

The over-arching issue raised by EmptyWheel is not whether citizens should have the right to deploy unbreakable encryption (there are good arguments on each side), but instead that the government may be settling the debate in secret. The issue of encryption is too important to be stuffed into secret court proceedings. Let’s hope the Justice Department finds a way to debate this in the open.

Jeff John Roberts


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