The FBI versus Apple: A Catch-22

We knew this would probably happen sometime – a court fight over smartphone security issues.  Sure enough, the FBI is hard at it with Apple.  The terrorists in San Bernardino, California, back in December were using an iPhone.  The FBI wants Apple to hack the phone and Apple is saying no.  That would compromise one of the main features of those phones and set a most unfortunate precedent.  However, law enforcement officials of all kinds are anxious for resolution because all kinds of criminals use smartphones, which at present can be “tapped” only with great legal and technical difficulty.

We do think this issue is worthy of discussion.  It’s obviously controversial for Apple to even have objected at this point in time, since the immediate cause is a domestic terrorist attack in which 14 people were killed.  And it’s easy to say, “but of course Apple should provide the mechanism for opening the phone’s contents.”  But Tim Cook, the CEO of Apple, does have a point that this is precedent-setting and the way to deal with it should be discussed openly.

6 Weeks' Worth of Data Locked in the Phone

This San Bernardino event is a great test-case.  iPhones are secure to the owner/user.  They can be backed up to a storage area on a “cloud”.  Data that are transferred to the cloud can be obtained by investigators, and indeed, the FBI has already obtained those data from terrorist Syed Rizwan Farook’s account.  However, the attack took place on December 2, and Farook had not backed up the phone since October 19.  So plenty of fresh and helpful information was likely recorded on the phone during the last six weeks just before the attack: who Farook’s associates and ISIS connections might be, whether other projects similar to his are being planned, and so on.  The phone itself is owned by San Bernardino County, which employed Farook; those officials, the owners, think it’s fine for the FBI to inspect the phone’s contents.

But Apple Worries about Construction of a "Backdoor"

Apple, through a public statement by its Chairman Tim Cook and also in an official court filing, is objecting to unlocking the phone.  The company argues that the work it would do to enable decryption of the contents of an iPhone could be applied to any iPhone, thereby potentially eroding the extraordinary security provisions on all iPhones.  As it stands, the data on any given iPhone are associated with the owner’s “Unique ID”.  The FBI is wanting Apple to devise a workaround to get to the data without the ID.  This is known in the jargon as a “backdoor”.  Apple is, quite logically, very concerned about creating such a backdoor technology.  Conceivably, then, any iPhone a thief or other criminal got hold of could be hacked.

We were watching a Fox News program late last week in which a retired Army colonel was being interviewed on this issue.  The colonel said something like, “this is a national security issue and of course Apple needs to develop this decryption software!”  The news anchor conducting the interview instantly blurted out, “but that’s why I have an iPhone – precisely because it can’t be decrypted by anyone else.”

FBI Does See the Importance of the Phone's Security

FBI Director James Comey initially sounded impatient with Apple, claiming that Apple’s defense, spontaneously described by the anchor in that newscast, is based on marketing and reputation, not on the technology.  Apple and many of its customers would not agree; the security of the phone is a basic characteristic of the product. Given that there are in fact some 825 million iPhones around the world, their interests would seem a worthy consideration.  And evidently, Mr. Comey himself has come to a deeper understanding of what he was asking of Apple.  Later, on February 25, he testified before the House Intelligence Committee that this encryption issue is “the hardest question I’ve seen in government.”[1]

Addressing the Law Enforcement Need Now

There is legal precedent, of course, for telecommunications companies to provide call data to law enforcement agencies.  In 1994, Congress passed the Communications Assistance for Law Enforcement Act which requires carriers to build surveillance capability into their networks.[2]  So AT&T and Verizon automatically provide whatever such “wiretap” access is called for in court orders; in the last half of 2015, there were more than a quarter million such requests from all kinds of law enforcement agencies in both criminal and civil proceedings.  In the first half of last year, 998 requests came specifically for national security purposes.  Sprint also has had many thousands of such data requests.  Apple in fact does address these requests too.  It reports that it had 971 law enforcement requests for “account data” stored on iCloud or iTunes accounts in the first half of last year, and it responded to 81% of them.  In addition, it had 499 requests based on national security needs.

The difference is evidently that the information the carriers provide is only phone numbers and text message connections.  According to The Wall Street Journal, it “can’t provide access to . . . message content or calls made over mobile apps such as WhatsApp, Skype or the blue iMessages sent between two iPhones.[3]

Formal Legislation Likely Needed

Regardless of the specific outcome of the San Bernardino case itself, it is likely to add to already building momentum for formal legislation on this situation; that is, there should be some general rules so people who own phones can know what to expect, and representatives of the people should make those rules.  Indeed, the Chairman of AT&T Randall Stephenson this week noted, “The rapid pace of technological innovation is challenging laws crafted in a very different era for totally different, and much less complex situations.  Recent developments, in particular, bring home the need for legal clarity.”  And the Chair of the Senate Intelligence Committee is working on a bill that would create criminal penalties for companies that don’t comply with court orders to decipher encrypted communications.  It remains to be seen what the specific language of such a law might require.[4]

So, most immediately, the dilemma remains.  More, in the San Bernardino situation, there is considerable irony.  We noted that the county government owns the phone; Farook was only the user of that phone.  That government is in possession of software called “mobile device management” that would have enabled the county to make provision for the FBI to open the phone.  But Farook’s department did not sign up for it to be installed on their inspectors’ phones.[5]  Another irony is that, even as the federal government is fighting for the right to get Farook’s phone decrypted, the federal government provides grants to tech developers to create more encryption software.[6]

A clear summation of this Catch-22 was given last spring by a former CEO of Sprint at a cybersecurity conference: “Which CEO is more patriotic, the one who provides all the information the government requests to help catch a criminal or prevent a terrorist attack?  Or the CEO whose company creates tools that make it difficult for law enforcement . . .  to acquire a customer’s information, believing that protecting civil liberties is a higher calling?”[7]

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We don’t cite all the general sources about this story, which are plentiful; most of our material is from various articles in The Wall Street Journal, beginning right after the federal court order to Apple was made public on February 16.  We also sourced The Economist magazine and www.foxnews.com, as well as Apple CEO Chairman Tim Cook's "A Message to Our Customers", a letter dated February 16 and found on Apple's homepage at www.apple.com.

The footnotes cover specific aspects and quotes.

[1] Devlin Barrett.  “FBI Chief Says Finding Right Balance on Encryption Is ‘Hardest Question’.  The Wall Street Journal. February 25, 2016.  http://www.wsj.com/articles/fbi-chief-says-finding-right-balance-on-encryption-is-hardest-question-1456418466.

[2] Ryan Knutson.  “Why Encryption Fight Divides AT&T and Apple”.  The Wall Street Journal.  February 18, 2016.  http://www.wsj.com/articles/at-t-verizon-have-different-obligations-than-apple-1455838171.

[3] Ibid.

[4] Ibid.

[5] Associated Press.  “Common software would have allowed FBI to unlock San Bernardino shooter’s phone.”  Fox News. February 22, 2016.  http://www.foxnews.com/tech/2016/02/22/common-software-would-have-allowed-fbi-to-unlock-san-bernardino-shooters-phone.html.

[6] Damian Paletta.  “How the U.S. Fights Encryption – and Also Helps Develop It”.  The Wall Street Journal.  February 22, 2016.  http://www.wsj.com/articles/how-the-u-s-fights-encryptionand-also-helps-develop-it-1456109096.

[7] Ryan Knutson. Op. cit.

A Lenten Task: Write Your Will

Many people give up something for Lent.  Others might approach the season differently: they take on some special task or duty during this time of penance and meditation.  What we present here takes the latter tack; our idea is hardly original, but it’s still important and bears repeating.  We propose that, if you do not have a Will and/or a Health Care Proxy, you take on the crucial lifetime duty of composing these documents.  That surely contributes to a worthy observance of Lent

We’re currently involved as the proposed executor of an estate and we’re learning a great deal almost every day about how the process works in New York State.  Our commentary here is not meant to outline this but to highlight for you a few things that have struck us as surprising.  We also include a few resources that may help.  In addition, some churches and other community groups offer classes in this project, and we urge you to take advantage of these whenever they might take place.

Resources for Writing a Will

Obviously, you can enlist a lawyer to help you write a will.  But for some simple wills, there are other ways.  Some time ago, Debbie Loeb of the Farm’s Hodgepodge page gave some relevant references.  You can see them here:  http://geraniumfarmhodgepodge.blogspot.com/2007_12_01_archive.html.   In particular, she mentions a book published by Nolo; that book is now (2014 edition) titled Quick & Legal Will Book ($24.99).  It includes links to downloadable forms for making a will.  Among Debbie’s other sources, the forms on the BuildaWill.com site cost $29.95, and the widely advertised LegalZoom.com services appear to begin at $69.  Clearly there are other books and websites, including Wills and Trusts Kit for Dummies and The Complete Idiot’s Guide to Wills and Estates.  While each of those is part of a popular series, they were published in 2008 and 2009, respectively, and with law changes, newer books might be better choices.  Look on Amazon.com and BarnesandNoble.com for their full inventories.  While we have a lawyer, we’re also into the Quick & Legal Will Book for ourselves; it – and others, we presume – are careful to explain the conditions under which one should actually consult a lawyer rather than using books or on-line forms.

Even if you already have a will, it perhaps is years old and may well need to be updated.  Indeed, this last point, an old will, is where we started in our current estate venture, with a 35-year-old instrument.  Fortunately, most of it still applies.  But it is the case that the decedent’s father is named as a substitute or “successor” executor, and he passed away 20 years ago.   In addition, the age of this will means that in our local Surrogate’s Court, extra documentation is necessary for authentication.  Witnesses to the will may need to give sworn statements that they know the decedent; in one case, it is the secretary to the lawyer who drew up the will who is furnishing some of this back-up material the Court is requiring.  This court filing process itself could thus be much easier if the will had been kept up to date.  A word to the wise here.

Be sure to keep a will in an accessible place that someone knows about.  While it might sound logical to put it in a safe deposit box, it could then become tricky to get access to it.  We did find out, though, that in New York State, we could get a court order to open a box and inventory the contents; in fact, our laws enable a survivor to do that to look right away for a will, a life insurance policy and a cemetery deed.  And the court order we used was obtained within hours of our requesting it, so if it is needed immediately on someone’s passing, that might be manageable.  In a different example, a friend we knew some years ago simply stashed some of these kinds of papers in a box on the floor of her bedroom closet; the box was labeled “for Ruth”, her niece who would manage affairs upon her passing.  That worked fine in the otherwise tense days right after that woman’s death.

Beneficiaries on Bank Accounts?  In fact . . .

We lately also learned another fact about managing assets and leaving them to people.  Bank accounts and some securities accounts, especially IRA’s, can have beneficiaries.  In this case, the assets go immediately to the beneficiary upon the person’s death.  They do not become part of the estate, so the beneficiary gets use of them right away.  We had long known this about insurance policies, but it’s true for other assets, and in fact in some cases, it is legally required to name a beneficiary.  This is a similar notion to owning real estate “with rights of survivorship”, so the property immediately becomes fully owned by the relevant joint owner.  So visit your bank or securities account manager and arrange for this.  It greatly simplifies the transfer process, and that may help a lot if your survivors need funds before an estate can be settled.

Health-Care Proxy

Another document that’s vital is a Health Care Proxy/Living Will.  In New York State, these are now combined into a single document.  Perhaps they are in your state as well.  The need for this is clear.  If you can’t speak for yourself, how do you let people know if and when it’s all right with you to let you go?  Here’s a Hodgepodge commentary about this issue, actually written by a hospice chaplain:  http://geraniumfarmhodgepodge.blogspot.com/2005_05_01_archive.html.  It’s especially hard to think about these things, particularly in the prime of life.  But doing so can help a lot.  This document, too, needs to be in an accessible place; our own lawyer advised giving copies to, obviously, the proxy person themselves and to the alternate and also to our primary care physician.  Carry a copy in your purse – maybe a man could have one on a flash drive he carries in a pocket? – and tack a copy to your refrigerator door, a place where, we understand, emergency personnel often look.

So, yes, all this is hard to think about.  But you do everyone a favor and give yourself peace of mind if you have an updated will.  And you help everyone around you by outlining your own preferences in case there is a bad time in your life when discussions of life and death are required, and when, by definition, everyone is terribly upset.  Important Lenten observances, these are, indeed.  Good luck with them.