APPLE V. FBI: JUST ONE BATTLE IN THE 'DESIGN WARS'

Our OpEd arguing that the issues in Apple v. FBI must be addressed wholesale in a public participatory process by Congress, rather than piecemeal by courts . .

also available at https://www.law.com/…/apple-v-fbi-just-one-battle-in-the-de…/

APPLE V. FBI: JUST ONE BATTLE IN THE 'DESIGN WARS'
Deirdre K. Mulligan & Kenneth A. Bamberger

The FBI’s request that Apple help break in to the encrypted iPhone used by San Bernardino terrorist Syed Rizwan Farook has teed up a one-on-one court battle between the government agency and the tech giant. Yet framing the case narrowly as a public-corporate battle over encryption misses its greater import. The debate is merely one skirmish (albeit a high-profile one) in what we have called “The Coming Design Wars.”

These wars will determine how American society weighs, layers and protects a range of important priorities, including privacy, national security, consumer security, free speech, intellectual property, and innovation. How these wars are resolved—and who gets to play a part in their resolution—will determine how each is preserved in the digital age. And addressing issues about swiftly changing technology in a piecemeal and reactive manner through fact-specific cases between two legal parties ensures that we will never get the balance right.

The ramifications of deciding the extraordinary powers claimed by both the FBI and Apple in this case through a court case would be widespread, with unpredictable implications for a host of important values—including security itself.

For its part, the FBI has asked the court to invoke the All Writs Act to force Apple to write a special software downgrade to facilitate a brute-force attack on the phone’s encryption and access the encrypted phone’s contents. That general provision, originally enacted as part of the Judiciary Act of 1789, authorizes United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Yet over the last 25 years, the framework governing law enforcement access to electronic communications, and the technical design and assistance obligations of service providers who carry and store them for the public, has been developed by a different constitutional arm of government—the legislative branch.

By enacting the 1986 Electronic Communications Privacy Act (ECPA) and the 1994 Communications Assistance for Law Enforcement Act (CALEA), Congress has sought to maintain law enforcement’s ability to access evidence, detailed a limited set of responsibilities for various service providers, and filled gaps in privacy protection left by the U.S. Supreme Court’s interpretation of the Fourth Amendment.

Importantly, CALEA—which essentially requires telecommunications carriers to design their networks to allow law-enforcement wiretapping—applies only to telecommunications common carriers and prohibits the government from dictating design. Alternative versions of the law that sought to extend these requirements to service providers such as Apple have been debated and so far rejected by Congress.

A ruling that the All Writs Act can be used to force Apple retroactively to redesign an iPhone it sold to ensure FBI access to data an individual chose to encrypt would allow law enforcement to bypass the public policy process on an issue of immense importance to citizens, technologists, human rights activists, regulators and industry.

Unlike a law that allows those in specific government roles (such as law enforcement), to invoke a court process to access communications once a specific legal standard is met, the inclusion of a technical system vulnerability invites in anyone who can locate it—no standard, no process, no paper required: come one, come all.

For these reasons, these issues don’t map well onto a bilateral court battle between “government” and the “private sector.” They implicate a diverse range of views from all sectors of society, including within government. For while access to encrypted data might indeed promote national security, weakening systems to enable such access compromises system security and can threaten national security. For these reasons, former NSA and CIA Director Michael Hayden has concluded that, on balance, America is “more secure with end-to-end unbreakable encryption,” while current Defense Secretary Ashton Carter stated last week that data security and encryption “is absolutely essential.”

The remedy requested by the FBI, moreover, would have ramifications for broader
issues like consumer security, intellectual property, and human rights. As Sen. Ron Wyden has written, “If the FBI can force Apple to build a key, you can be sure authoritarian regimes like China and Russia will turn around and force Apple to hand it over to them …. They will use that key to oppress their own people and steal U.S. trade secrets.” Given the reach of Apple’s products, human rights advocates have expressed particular concern about the global implications of both the requested technical redesign, and the resulting legal precedent, for freedom of expression.

There are important debates to be had over the weight of these competing values. But they should occur through a public, participatory process, rather than behind the closed doors of a judicial chambers.

Similarly, the court should resist any temptation to extend the extraordinary constitutional protection that Apple claims as a defense in this case, on the narrow facts of this single case.

Apple argues that the First Amendment prohibits the government from compelling it to make code, claiming that code is core protected expression. To be sure, computer code can reflect communicative elements, which might therefore receive speech protections. But, as courts have recognized, much of code plays a functional, rather than communicative, role.

That’s not to say that code choices don’t embed values. To the contrary: in the digital age, much of the background landscape that govern our choices, opportunities, and the way we live as individuals is shaped by the code that governs the architectures of these platforms.

Precisely for this reason, determining that the writing of code should receive constitutional protection would have massive implications for who makes the decisions, and whose voices are heard, when deciding how to balance these values in the design of technical systems. It could remove a huge swath of digital-age issues from the context of a public policy discussion—and from public regulation—into private hands.

Constraining public regulation’s domain over issues of code design confines the debate over the values we wish to govern the digital age. For while values like intellectual property and market viability should be taken into account, code implicates a far broader range of interests, such as personal privacy (and the desirability of mandating that code embed privacy-enhancing defaults “by design”), or fairness and non-discrimination in decision making powered by analytics and machine learning.

Without a doubt, the values-balancing act will only become more challenging, and more important, in the face of opportunities and threats presented by rapidly-changing technology. These decisions cannot be left to individual actors. They must be made as a society.

Make no mistake, we are in the midst of the Design Wars, and those wars are about policy priorities which ought to be established through full and open legislative debate.

Deirdre K. Mulligan and Kenneth A. Bamberger are faculty directors of the Berkeley Center for Law and Technology. Mulligan is an associate professor at the UC Berkeley School of Information, and Bamberger is a professor of law at UC Berkeley.