Buzzing: CDT's #AppleVsFBI Brief, SXSW Excitement – Talking Tech w/ Lisa Hayes & Jadzia Butler
Host Brian Wesolowski talks with Lisa Hayes and Jadzia Butler to discuss CDT's amicus brief in the pending Apple vs. FBI case. With all the buzz continuing to swirl around this issue and the San Bernardino shooter's iPhone, these three discuss why it was imperative we join the fight, what our brief entails, and what impact we hope to have.<br><br>PLUS – Brian collects CDTer's who will be joining us in the fun down in Austin this year for SXSW Interactive 2016. See what all the excitement's about!<br><br>Attribution: sounds used from Psykophobia, Taira Komori, BenKoning, Zabuhailo, bloomypetal, guitarguy1985, bmusic92, and offthesky of freesound.org.
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Transcript
Welcome to Tech Talk. Bye.
CT. Team.
Welcome to CDT's tech talk where we dish on tech and Internet policy, while also explaining what these policies mean to our daily lives. I'm Brian Wasilowski, and it's time to talk tech. In this episode, like most of America, we'll be talking about Apple and the FBI. CDT has filed a brief in support of Apple in the case, and we'll explore the angle we took in that brief while also addressing the broader implications of the case on society. We'll also be talking about South by Southwest with a preview from a number of the CDTers heading out to Austin. The debate around Apple and the FBI's order is and likely will be, for some time, very top of mind for digital rights activists, as it should be for anyone who has a cell phone. From day one, CDT has stood behind Apple's position in imposing any form opposing any form of government mandated backdoor into their operating system. Encryption makes us all safer. CDT has filed a brief in support of Apple in the case, and in it, we take on the application of the all writs act to the case. IS law, the all writs Act. Joining me are Lisa Hayes and Yasha Butler to talk about CDT's brief and decode some of this legalese. It was a very, very quick turnaround on this brief, and I know that both of you worked very hard on it. So thank you so much, and congratulations on getting it in.
Thanks.
Look how eager. There's so much energy from them. This is amazing. So before we talk about that brief, which I'm sure on some level, you kinda wanna put a little bit behind you and maybe enjoy a weekend or something, can you give me a sense of what's really at stake in this case?
Sure. The common thread that we keep hearing in the media is that this is just a case about one phone that was being used by somebody who killed dozens of innocent victims. The problem is that's not what this case is really about. This case is about the government having the ability to order a company to write code that fundamentally undermines the security of its device. If the government wins in this case, it sets a dangerous precedent for our whole country that any company at any time could be conscripted to be an eavesdropping agent on behalf of the government, government, including the bus that just went by outside your window.
I mean, in that vein, I think when a lot of people talk about this case and talk about the encryption debate, they frame it as a privacy versus security debate. And and I always bristle at that because that's such a false dichotomy. This is a security versus no security debate. If Apple is forced to create this master key, similar companies will soon also be forced to create something similar, and it will ultimately weaken our cybersecurity as a whole. This is an incredibly, incredibly dangerous proposition.
And what about the, arguments around creation of that key? I mean, our Apple has been arguing that if you create it, it could fall into anyone's hands. Why is this different? Why is this just not a one time thing that they could create and destroy? I know neither one of you is technologists, but,
why is that the case? Well, first of all, it's the case because that's not how the law works. What's happening right now in California is that a judge is going to look at this order and figure out, does the All Writs Act allow the government to compel Apple in this way? Yes or no. It's not a case that says, okay. Just for this one phone in this one instance, could this work? It's does the conference act allow this? So that's number one. It it's it's kind of a a disingenuous promise when they say it's going to be just one time one phone because that's not how this works, and they know that. But also when Apple an incredibly, incredibly valuable thing. Lots of resources will be used by hackers, malicious governments, maybe even terrorists to try to get their hands on it, especially when it keeps being created as more cases come down the road, not just from the FBI, but from state and local law enforcement as well. This kind of master key is going to be everywhere, and and that is why they're concerned
that eventually it will end up in the wrong hands. Yeah. On that point, Yahasha, it's, I think, worth noting that a similar case was in New York just earlier this week where the DEA, rather than the FBI, was asking Apple to unlock a phone that was used in a crime. This isn't just one case. Once that key is created and the encryption is weakened, they are going to be asked to do it again and again.
And I you know, those are some great points because certainly one of the arguments you hear is just this one case, just this one case. So those are some great responses to that. So let's get to that brief that you all worked on. I think it's beautiful. It's filed, and it's, going to change the view or shape the view of the court, I suppose.
What was the positions that CDT took in that? I know we didn't cover the whole, you know, every angle that you could possibly cover, but what what was the argument we made? I I think it's worth noting that this is a district court case right now, and it is really unusual to file an amicus brief in a district court case. We talked with lots of other civil society organizations, lots of companies, people who were interested in speaking out on behalf of Apple's defenses. And we all sort of hustled to try to figure out the right way to make that happen because almost nobody had ever filed a brief like this in a district court before. So procedurally, there were some hurdles we had to overcome right at the beginning. But then what you want to do with an amicus brief is make sure that you are adding value to the court's decision making process. You don't want to simply come in and all stamp apples brief and say, yes. We agree with this position. You wanna bring a new a new edge, some new reasoning, some new expertise that the court doesn't otherwise have in front of it. When CDT looked at this case, it was so clear that what this case personifies comes straight back to the beginning of CDT and the original CALIA encryption wars. We have been working on this issue for more than twenty years as an organization. So we were able to bring to the court a sense of the history of the legislation, of the discussions that have gone on in the public policy and in our country on a broader basis, and also then to delve down into the All Writs Act and look at whether or not this was what our framers intended when they first adopted the All Writs Act back in the first congress.
Yeah. I think one of the key things that our, brief did was that it it points out the fact that there's really no limiting principle attached to the FBI's order here. So if the FBI is allowed to compel Apple to create a software that's going to undermine the security nearby. Nothing to stop it from turning on your webcam, having nearby. Nothing to stop it from turning on your webcam or even your smart TV to monitor you that way. Turning on your location services and following you around even when you have them turned off. And when that happens, users will eventually catch on that this is a possibility, and they're not going to trust their devices anymore. When they don't trust their devices, maybe they won't trust the security updates that get pushed to them. And if they don't trust those updates, then eventually, all
of our devices are going to be rendered really insecure. It it's just going to weaken our defenses all around. I find it really frustrating, if I can add on that, that a number of people have argued in the press that folks can avoid some of this technology if they're uncomfortable with this government surveillance. And I don't think that's truly feasible in today's world. I mean, once upon a time, a cell phone was a luxury. I remember my first one, you know, was a flip phone, roughly the size of one of my kindergartners shoes. But today, you you find kindergartners with their cell phones that access the Internet. Technology is going to keep increasing. The interconnected world is gonna keep growing, and this case has the power to make every single one of these interconnected devices an unsecure, open to attack government listening device.
And, you know, just in this room, I mean, there's four people and there's four phones in this room. And mine's right on the table, so it better better not ring. But that I mean, someone, if they wanted to, they could have this podcast in advance. I mean, that's just insane. They could turn on my mic and get it. So, Kalia, you mentioned this. I'm gonna spell it out here. It's the Communications Assistance for Law Enforcement Act. Tell us a little bit about this. This is, you know, kind of CDT's bread and butter, something that goes back to the the very founding days of it. And, you know, when I read through the brief, through my non lawyer eyes, I'm like, oh, there's a lot of Kalia in this. What is that? You know? It it sounds like, you know, this a lot of the arguments we're making, we had to make, you know, two years back. You know? This isn't all new stuff. Right. Right. So one of our key arguments in our
all rights act can't apply here because the question of whether the government can compel a provider like Apple to do something like this is a question that's already been asked and answered. When CALEA was passed in 1994, it was a statute that compelled telecommunications providers to build backdoor capabilities into phone switches. The statute explicitly leaves out information service providers, information service providers such as Apple. Because the statute automatically does this, it doesn't really seem to make sense for a court to be allowed to go around Congress and still sanction this kind of use. But then in addition, in recent years, Congress, the executive branch, they have actually been talking about whether or not CALEA should be expanded expanded to providers like Apple, or like Microsoft or Google. And, ultimately, they decide to to not take any action. So, again, if a court is allowed to still, through the All Ritz Act, allow the FBI to compel Apple to do this, what that would mean is that Congress would have to effectively prohibit so many things just to prevent courts from going behind their decisions to ultimately not act.
Well, we haven't had a chance to read the other amicus briefs yet because they are all being filed with the court right now. But my understanding and expectation is we will see a couple of briefs focused on the First Amendment, Amendment, looking at it both from international human rights angles and also looking at it from a a a new area of law in terms of code as speech. And technologist explaining to the court how I forcing them to create code that is contrary to their opinions and their beliefs is compelled speech under the first amendment. I also expect to see a brief on fifth amendment takings, with a couple of signatories on it.
What does that mean?
Fifth amendment takings. The government is not allowed to take your property without permission in a nutshell.
Well done.
Yeah. Like Lisa said, we haven't really seen any of the briefs that have been submitted yet, but they should be a lot of fun to read. I think there are a lot of diverse people submitting these briefs. I know the tech community has rallied behind Apple. I know that, some academics have submitted some briefs of their own. And and, of course, course, I'm sure local law enforcement will be, submitting, in support of the FBI as well. So over the next few days, we'll probably just be pouring over what everybody else said and and and digesting it and figuring out where we wanna go next. Sounds like like great beach reading. Yeah. Right? That's like beach season. If only it weren't about to snow tonight. Yes.
Yasha, you mentioned that, you know, Congress has more or less dealt with this issue and answered this. They did hold a hearing though just this week on it. What was kind of the tenor of that hearing? Any anything that came from that that stuck with you? Because I know you were paying attention to it.
First lasting impression was that it was over five hours long. Wow. It was an incredibly long hearing, with a lot of members participating. I'd say the one thing that stuck out to me most was, the remarkable skepticism that members expressed towards at the FBI's proposal, and we're talking Republicans and Democrats. I was pleasantly surprised by how well informed everyone seemed to be. And and their questions were really smart. At at one point, it was, the question was brought up whether or not this was absolutely necessary for the FBI to do. And throughout that line of questioning, someone necessary for the FBI to do. And throughout that line of questioning, someone pointed out that at the end of the day, the only reason the FBI is asking for Apple to do this is because the FBI and the county messed up. Without going through Apple, they remotely changed the, iCloud password for this particular device. If they had not done that, they could have just brought this device to an area that has Wi Fi, hooked up the phone to Wi Fi, backed it up remotely, and then Apple would have been able to grab the data that they need from the cloud because Apple currently has access to that data. So because they didn't do that, because they changed the iCloud password, now they have to come to Apple and seek these extraordinary that they need. Members of congress were aware of this, and, they pointed it out to FBI director Comey, and he admitted that, yes, it was true. Mistakes were made throughout this investigatory process. So overall, it was a very well informed hearing. It was one of those hearings where even though it was long, it was genuinely interesting
Well, I would say that a five hour hearing, and I don't know how like, a full week now around the clock you two have been working. It's been a true tour de force on your part to get this brief in. Clearly, a lot more to come on the case, and I know arguments are gonna be heard on the March 22, so not too far off. I know you'll be paying attention. So thank you so much to both of you for joining Tech Talk. Thank you so much for all your hard work on this. And as the case moves forward, we'll have you on again. Thanks, Brian. Thanks, Brian. Starting March 11, CDT will be invading Austin, Texas for South by Southwest interactive. We have five people on panels addressing issues such as the privacy of health wearables, managing extremist content online, the on demand economy, and more. We will also be hosting our second annual tech policy happy hour with the R Street Institute. And, thanks to a great partnership with CSM passcode, CDT will have a presence at the huge interactive expo, where we've created a security assessment quiz to find out if your security practices make you a noob, a skinny, or an elite. I don't even really know what those mean. So So be sure to stop by our booth if you are in Austin for South by. To give you a bit of the Texas flavor, we've asked a number of the CD tiers heading to South by Southwest to share what they are most looking forward to and also what they'll be talking about at the interf interactive festival. What are you most excited about?
I am very excited about CDT's booth at South by Southwest to see how people react to the categories they in that in because I'm excited to see how people will react to being called a nerd, a skittie, or an elite. And another thing is that in I saw an Intel rooftop drone flying party. I don't know what that is, but I'm excited about that. I hope I get to fly a drone.
Awesome. Absolutely. So what I am most excited for at South by Southwest twenty sixteen is probably CDT's happy hour. It is a really, really fun group, and we all get together and, you know, you see people that you don't normally get to see in DC. I'm also really, really excited for the food at South by Southwest. Last year, I didn't get to go to Franklin Barbecue and so I think I'm gonna make a pilgrimage there this year.
Yasha, you're going to South by Southwest. What are you most excited about? First and foremost, I'm excited to get back down to the South. I grew up in Florida. I went to college in Tennessee. I have my cowboy boots on now. I'm ready to go back down to Texas. And it's even better because I'm going to get to go with all these tech nerds who love what I love, and and we're just going to go and hear about interesting topics, eat great food, drink great beer. I'm just so excited to be back down there, especially since winter has decided to come back to DC for whatever reason.
Perfect. What are you excited about?
I'm really excited to spend, last few days with my CUT coworkers before I finish my fellowship in beautiful Austin and far away from the slightly chilly DC.
I wanna help some celebrities make some great passwords.
I'm really looking forward to hearing from new people people and hearing new ideas. My biggest piece of advice to anyone going to South By is go to panels with people on them that you haven't ever heard before. I'm excited to see the other part of this research project again. The the person from Fitbit that I haven't seen, we've spoken a bunch of times, but I haven't seen him in about a year. And he's a really nice guy, and I'm excited to actually finally release this report.
I'm excited because a year ago, my coworker, Tim, and I had an an hour long heart to heart under the Bat Bridge, and we've scheduled round two for this year. Woo.
What's your talk on?
So we're hosting a great panel called how to fight ISIS without breaking the Internet that's going to have some amazing experts talking about what governments are asking tech companies to do and what tech companies really should be doing about the fact that terrorists, like everyone else, use social media.
Our panel is on what to do with your email when you die. So we have a lot of different people speaking on the panel from different perspectives. There's a academic from The UK who his main project is trying to envision the future of cemeteries. I think he's expecting some big changes, which would be pretty revolutionary as far as cemetery technology goes. And we have somebody from Facebook who was on the product team that developed digital legacy, which is their tool to help you plan for your own digital demise and future. And then we have a lawyer who's gonna explain to us, the limits of what you can do and the defaults of what will happen and give you some advice for how to manage, your own content for when you die.
That's it for this episode of Tech Talk. You can find a lot more about our advocacy and support of strong encryption online at cdt.org. And if you're going to be in Texas for South by Southwest, be sure to visit the CSM passcode booth or track down any of the CD tiers in town at our panels or the social events we're sure to be at. Hope to see you there. As always, tweet us any questions you have or topics you'd like us to address to at send them tech. I'm Brian Wasilowski, and thanks for listening.
