Bipartisan Coalition Finally Tells Europe, and the FBI, To Shove It
Last Friday, while leaders around the Western world were up in arms about J.D. Vance’s confrontational address to the Munich Security Council, the Washington Post published a good old-fashioned piece of journalism. From “U.K. orders Apple to let it spy on users’ encrypted accounts”:
Security officials in the United Kingdom have demanded that Apple create a back door allowing them to retrieve all the content any Apple user worldwide has uploaded to the cloud, people familiar with the matter told The Washington Post.…
[The] Home Secretary has served Apple with… a technical capability notice, ordering it to provide access under the sweeping U.K. Investigatory Powers Act of 2016, which authorizes law enforcement to compel assistance from companies… The law, known by critics as the Snoopers’ Charter, makes it a criminal offense to reveal that the government has even made such a demand.
This rare example of genuine bipartisan cooperation is fascinating for several reasons. Oregon’s Ron Wyden teamed up with Arizona Republican Congressman Andy Biggs to ask new Director of National Intelligence Tulsi Gabbard for help in beating back the British. While other Democrats like Michael Bennet and Mark Warner were smearing Gabbard as a Russian proxy in confirmation hearings, Wyden performed an homage to old-school liberalism and asked a few constructive questions, including a request that Gabbard recommit to her stance against government snatching of encrypted data. Weeks later, the issue is back on the table, for real.
The original UK demand is apparently nearly a year old, and Apple has reportedly been resisting internally. But this show of political opposition is new. There has been no real pushback on foreign demands for data (encrypted or otherwise) for almost nine years, for an obvious reason. Europe, the FBI, and the rest of the American national security apparatus have until now mostly presented a unified front on this issue. In the Trump era especially, there has not been much political room to take a stand like the one Wyden, Biggs, and perhaps Gabbard will be making.
The encryption saga goes back at least ten years. On December 2, 2015, two men opened fire at the Inland Center in San Bernardino, killing 14 and injuring 22. About two months later, word got out that the FBI was trying to force Apple to undo its encryption safeguards, ostensibly to unlock the iPhone of accused San Bernardino shooter Syed Rizwan Farook. The FBI’s legal battle was led by its General Counsel Jim Baker, who later went to work at Twitter.
One flank of FBI strategy involved overhauling Rule 41 of the Rules of Criminal Procedure. The FBI’s idea was that if it received a legal search warrant, it should be granted power to use hacking techniques, if the target is “concealed through technological means.” The Department of Justice by way of the Supreme Court a decade ago issued this recommendation to Congress, which under a law called the Rules Enabling Act would go into force automatically if legislation was not passed to stop it. In 2016, Wyden joined up with Republican congressman Ted Poe to oppose the change, via a bill called the Stopping Mass Hacking Act.
Two factors conspired to kill the effort. First, the FBI had already won its confrontation with Apple, obtaining an order requir
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