Guest Host: Susan Page

“This case is about much more than a single phone” Apple CEO Tim Cook wrote in a letter to Apple employees yesterday. Last week’s court order calling for the company to help law enforcement access the iPhone of one of the San Bernardino shooters has touched off a new heated chapter in the debate over privacy versus security in tech. In comments on Sunday, FBI director James Comey wrote that the FBI does not want to “set a master key loose on the land”. What’s at stake for law enforcement in the debate goes beyond terror investigations; new encryption technologies could be hampering all sorts of criminal investigations, many say. But Apple and its supporters say helping officials hack in to the phone would set a dangerous precedent and put Americans’ privacy at risk. Inside the escalating debate.

Guests

  • Devlin Barrett reporter, security and law enforcement, The Wall Street Journal
  • Alex Abdo Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union
  • James Lewis director and senior fellow, Strategic Technologies Program at the Center for Strategic and International Studies
  • Michael Hayden retired four-star general; former Director of the National Security Agency; Principal Deputy Director of National Intelligence; Director of the Central Intelligence Agency

Transcript

  • 10:06:54

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today sitting in for Diane Rehm. She's on a book tour. The battle between Apple and the government over access to a dead terrorist iPhone is heating up. Reports today that survivors and families of victims of the San Bernardino shooting plan to file court papers supporting a judge's order for Apple to aid the FBI.

  • 10:07:18

    MS. SUSAN PAGEThe tension between privacy and security and tech is being fueled by encryption technologies embraced by companies like Apple. As law enforcement argues, it should be able to hack criminal's phones for the sake of public safety, but privacy advocates say it's a step too far. Here with me in the studio to discuss this issue is Devlin Barrett of The Wall Street Journal and James Lewis of the Center For Strategic and International Studies. Welcome to "The Diane Rehm Show."

  • 10:07:46

    MR. DEVLIN BARRETTHi.

  • 10:07:46

    MR. JAMES LEWISThank you.

  • 10:07:46

    PAGEAnd joining us from the studios of NPR in New York City is Alex Abdo of the ACLU. Thanks for being with us.

  • 10:07:54

    MR. ALEX ABDOThanks for having me.

  • 10:07:55

    PAGEWe invite our listeners to join our conversation later in this hour. You can call our toll-free number. It's 1-800-433-8850. You can always send us an email at drshow@wamu.org or find us on Facebook or Twitter. So Devlin, let's start with the basics. What is that the court has ordered Apple to do in this particular case?

  • 10:08:19

    BARRETTWhat the FBI wants to do with Syed Farook's phone, Syed Farook is one of the shooters in the San Bernardino, California, terror attack, is they want to get Apple to essentially disconnect a passcode protection feature that would delete all the data on the phone if there are more than -- if there are 10 incorrect guesses at the passcode.

  • 10:08:44

    BARRETTSo they basically want Apple to apply some software code that would bypass that feature so that the FBI can then guess until they get the right passcode.

  • 10:08:54

    PAGESo this is a feature on your phone where if you lose your phone and somebody's trying to get into it, they get ten tries and then the data's wiped clean?

  • 10:09:02

    BARRETTRight. The data's essentially wiped. It's no longer gettable at that point, ever.

  • 10:09:07

    PAGEAnd is it a pretty easy -- that doesn't sound that hard. Would it be pretty easy for Apple to disable this feature?

  • 10:09:11

    BARRETTIt's interesting that they're -- Apple's being slightly coy on that point. The government contends that it actually would not be a significant technical challenge for Apple to do it. Apple really hasn't addressed that directly yet. They're just saying that, one, it's not something we should be forced to do and, two, it would compromise the privacy and security of all the other iPhones out there.

  • 10:09:34

    PAGESo Alex, that doesn't sound like such a big deal. What do you think about the idea that this -- the iPhone that was used by the man who helped kill 14 people in this terror incident in December in San Bernardino, what's wrong with the idea of getting into his iPhone?

  • 10:09:50

    ABDOWell, I think what's important to understand is what you said in the lead for the show, which is, as Tim Cook said, this case is not about this one iPhone. It's about the security of all iPhones. And even more broadly than that, it's about whether U.S. companies can be forced to hack into their consumer's devices and there are all sorts of reasons, both legal and policy for why that's a terrible idea.

  • 10:10:12

    PAGEWhy is that a terrible idea?

  • 10:10:14

    ABDOWell, legally speaking, the U.S. government has always had the authority to force companies and citizens to turn over information in their possession that's relevant to an investigation. But they've never had the authority to conscript private parties into governmental service, to turn private parties essentially into spies for the government. And make no mistake, that's what the government is trying to do here is turn Apple's security engineers into hackers for the government.

  • 10:10:38

    ABDOAnd that's a bad, you know, it's a terrible idea for policy because it's bad for our security, for U.S. companies to be put in a position of fundamentally undermining the security of their products. Once you build those backdoors, once you compromise that security, it's very difficult to control who will enter the back door. Today, it's the U.S. government for salutary reasons, but tomorrow, it will be a repressive regime trying to investigate a dissident on its soul.

  • 10:11:03

    PAGESo Jim Lewis, we wouldn't want the Chinese government to be able to do this to dissidents in China. Is this a slippery slope? Is this a dangerous step that Apple would be taking?

  • 10:11:13

    LEWISWhy do you think the Chinese are waiting around to see what the Americans are doing? They don't have a lot of respect for us. They're going to do what they need to do, as is Russia, Brazil, India, the Europeans. What we're seeing is a larger battle over the future of the internet and the failure of American privacy policy. Those are the big issues. This isn't about back doors. Nobody's talking about a back door.

  • 10:11:35

    LEWISIn this specific case, Apple's been served a warrant. They need to service it, right? In the larger context, you've had a global reaction to the Snowden revelations where people now say I don't trust NSA and I don't trust American companies. And so you see companies like Apple trying to claw back a little bit of that credibility. And I don't think this was the case to do it on, but China isn't going to wait for us.

  • 10:12:02

    PAGEWhy isn't this a case that Apple should be using to make this point?

  • 10:12:05

    LEWISBecause in this case, it's not asking them to corrupt an entire system or put in a back door. It's asking them to service a warrant and it only applies to that particular phone. You'd have to have possession of the phone, physical possession, for this to work in the future and so it's not going to open up all Apple products to spying.

  • 10:12:26

    PAGESo Devlin, both the other guests have now referred to back doors. Tell us what a back door is and is that the issue in this particular case?

  • 10:12:33

    BARRETTWell, as you can see, it depends a little bit on who you ask whether it's a back door or not. A back door, the shorthand version is a back door is a way to get into a computer system that can either be, you know, hacked, locked, figured out, you know, there's all types of back doors, frankly, but it's essentially -- the simplest answer is it's an access point.

  • 10:12:55

    BARRETTIt's a way to get in if maybe you're not the person who's supposed to be in there.

  • 10:12:58

    PAGESo in this case, is the FBI asking Apple to essentially create a back door on this phone?

  • 10:13:05

    BARRETTThey say absolutely not. They say what they're saying -- all they're asking is for Apple to make a software application onto this phone, one particular phone, and then that would stay on in Apple's possession. It would never leave Apple's possession. And then, the government would then be able to guess the password eventually and get the data they want to see, look at what they want to see.

  • 10:13:28

    BARRETTNow, the argument as to why this is a back door is this, that once you create such a thing, it will not stay contained. It's sort of the notion of, you know, a virus in a lab. You may think you control it, but in the end, it gets out somewhere and some hacker or some government will find it and abuse it to nefarious ends.

  • 10:13:47

    PAGESo do you, Alex, not believe the FBI when it says -- we're talking just about this one case. There's not going to be a larger application if Apple helps us get into this particular iPhone.

  • 10:13:59

    ABDOWell, I think that there are really two questions embedded there. The first is the technical one, which I think Jim was getting at, whether what Apple is being asked to do in this case could be used against other phones. And I think there's some technical confusion there and I personally am not yet convinced, based on what I've seen, that it could be limited to this one phone.

  • 10:14:16

    ABDOBut I think even if you think that it could be, probably the more important reason to be concerned about this case is that the legal precedent that the government wants to set is, itself, the back door. If the government can force U.S. companies to deliberately compromise the security of an individual device, they can force them to do it for hundreds of devices.

  • 10:14:36

    ABDOAnd at the end of the day, Apple and other companies are going to have to have compliance divisions that are servicing these requests constantly, making us all less secure because it may be possible to guard a single use of this type of back door, but it'll be impossible to guard an entire division that is responsible for systematically breaking phone after phone being requested by the government.

  • 10:14:56

    PAGEDevlin.

  • 10:14:57

    BARRETTAnd one of the interesting things about that is, you know, we're seeing a generational change in technology and that is the old phone companies, the Ma Bells and their descendents always did this for the government. There is a very symbiotic relationship that has always existed between landline phone companies and the government and this was never an issue.

  • 10:15:15

    BARRETTPart of what you're seeing now is that the technology companies do not in any consider themselves to be phone companies and they don't believe that they have the same set of responsibilities that the old phone companies thought they had. So you're seeing things on the Hill where a senator will refer to Apple, for example, as a phone company and that infuriates the people at Apple because they adamantly believe they are not a phone company.

  • 10:15:38

    BARRETTThey don't have those same obligations. And, in fact, according to them, they have a completely different set of obligations to protect the data more securely than the phone companies protected their customers for decades.

  • 10:15:48

    PAGEAnd as Jim Lewis said, is this, in part, a reaction to the embarrassment they suffered when the Edward Snowden revelations came out?

  • 10:15:54

    BARRETTAbsolutely. I mean, from my vantage point, a lot changed from that moment on because at that point on, it seems like Silicon Valley really felt a need to prove that they were not essentially misusing or abusing their own customers for the benefit of government surveillance.

  • 10:16:11

    PAGEWell, Jim Lewis, do you think that Apple has the same obligations as the phone companies have traditionally had?

  • 10:16:17

    LEWISYou know, the internet just needs to grow up. It's not the 1970s anymore. Bring on the disco balls and velour suits, but it's time to think about Apple is a network service provider. So are the other big companies. And the issue is, what are their responsibilities. We have a bigger thing to think about, which is that the internet used to be American. Americans could say what it did. It's now global.

  • 10:16:42

    LEWISAnd other countries don't share the views of Silicon Valley so we're going to have to adjust and how we do that in a way that protects civil liberties and yet without sacrificing security is going to be really hard.

  • 10:16:53

    PAGEAlex, what about that? Should the internet just grow up?

  • 10:16:56

    ABDONo. I think that underestimates what really is going on here. And I agree, in part, with what Devlin said, that there has always been this historical distinction between the telecoms, which have been very heavily regulated since their inception, and the tech companies, which haven't been. But really, what's going on is this, the internet is now a Wild West when it comes to security and you have every cyber security professional, both within government and without government, warning that hacks are becoming more common place every day.

  • 10:17:23

    ABDOWe've become desensitized to it. When's the last time you opened a paper and didn't read about another major hack of a major U.S. company? And so there is a premium on security on the internet. It is extraordinarily important. And so what the tech companies are responding to is not just the newfound freedom that they have, but the need to protect their customers from these threats.

  • 10:17:43

    PAGEWe're gonna take a short break. When we come back, we'll go to the phones. We'd be interested in your perspective on what kind of privacy you expect when you use your Smartphone, 1-800-433-8850 is our toll-free number. Stay with us.

  • 10:20:02

    PAGEWelcome back. I'm Susan Page of USA Today sitting in for Diane Rehm. And joining us from the studios of NPR in New York City, Alex Abdo. He's the staff attorney for Speech, Privacy, and Technology Project at the American Civil Liberties Union. And with me here in the studio, James Lewis, director and senior fellow for Strategic Technologies Program at the Center for Strategic and International Studies. And Devlin Barrett, he's a reporter, security and law enforcement, for The Wall Street Journal.

  • 10:20:30

    PAGEWe want to take your calls and questions. Let's go to the phones to San Antonio, Texas and talk to David. David, thanks so much for giving us a call.

  • 10:20:39

    DAVIDThank you so much. It's a pleasure talking with you. I have -- my opinion of this is, Apple is like a locksmith. They've made the product. They just need to open the doors that the FBI can go in and do what they need to do. FBI has gone through the proper channel. They've gone to the court. They've gone through the channel to get the process works. Apple cannot stand between the government and the information. Excuse me.

  • 10:21:09

    PAGEAll right. David, thank you so much for your call. Now, Alex, is that a metaphor that you think works, that Apple is like a locksmith?

  • 10:21:18

    ABDOWell, I think it's a metaphor that's actually to Apple's advantage. Because if you think about American law, there are not instances in which governments have conscripted the local locksmith into breaking open the suspect's house. That is not a power that the government has enjoyed and it's generally one that our government shouldn't. You're generally free to be free from government interference unless you've done something wrong.

  • 10:21:38

    PAGEWell, of course, in this case, the San Bernardino shooter did do something wrong, right? He killed 14 people. So shouldn't a locksmith be able to unlock his door?

  • 10:21:46

    LEWISAnd the owner of the phone, which is the county health people, have given permission to both the FBI and Apple to go into the phone. So the owner is asking for help.

  • 10:21:57

    PAGESo is -- because it's a work phone, they provided the phone to him.

  • 10:21:58

    LEWISYeah.

  • 10:21:59

    PAGEWhat do you think about that, Alex?

  • 10:22:02

    ABDOWell, I don't think the question is whether the owner of the phone has done something wrong. Because, remember, the FBI is trying to compel Apple to build new hacking software to help the FBI hack into this device. And so the question is, does Apple have the information that the government needs? And they don't. And if they don't, then you're -- you have to set an extraordinary new precedent that allows the FBI to compel U.S. tech companies into their service. And there are all sorts of reasons, you know, why we shouldn't go down that road.

  • 10:22:32

    PAGEDevlin, you had a story in The Wall Street Journal today that talked about other cases in which this is an issue. How frequently did you -- do you find this happening?

  • 10:22:40

    BARRETTWell, it's happening all over the country and it's happening more and more. The district attorney for Manhattan says he has about 150, 170 phones that he can't look inside to see evidence that he thinks might be there of crimes. One of the things that's a little confusing about the government's position in the last week has been this is really just about one phone. Frankly, if you watch their congressional testimony and you watch other public appearances they've made, this is about more -- much more than one phone. Whatever the answer is, it's about more than one phone.

  • 10:23:10

    PAGEWhy are they saying it's just about one phone?

  • 10:23:12

    BARRETTWell, because they have a narrow thing -- they're in a narrow legal case they're trying to win with one judge on one phone. But the implications of that case are significant. And there are other cases -- there are 12 other cases currently outstanding where the government is trying to get a court order to force Apple to help them open an iPhone. And, you know, there are -- this has ripple effects throughout the system. And, you know, smartphones aren't going away.

  • 10:23:37

    LEWISBut in some ways that's the crux of the matter. Because you had a court issue a warrant -- this is what we want. We don't want the FBI just breaking in. We want them to go to a court, have a judge approve it and then get a warrant. Apple needs to service the warrant. It's -- they're doing everything by the book at the FBI here. And I don't see what the complaint is. You know, particularly because we know that in other parts of the world, Apple's going to face the same dilemma. Many, many governments are uncomfortable with the idea that people should be allowed to send messages they can't surveil.

  • 10:24:12

    PAGEBut isn't that part of Apple's argument, that if you do it here, you're going to have a lot of governments that are less respected than our own taking the same power?

  • 10:24:19

    LEWISI have bad news for you on that front. They're already doing it. There's more than 20 countries that already have requirements on decryption capabilities, and it ranges from very powerful democracies, like the U.K., to countries that you wouldn't want to play ball in, like Russia. People don't like it. And it's -- the issue is, how do you feel about rule of law? How do you feel about human rights? And I feel like Apple's undercutting the rule of law.

  • 10:24:44

    PAGEAlex, why don't you respond to that, both in terms of what the global picture is on this issue and also the whole rule-of-law issue. If a law enforcement agency has gone to a court, gotten an order to do so, what's Apple's standing to say, no, we won't?

  • 10:25:02

    ABDOWell, I think it's important to consider it in the full context. We've been having a national debate in this country now for a few months over the question of whether it's a good idea to force tech companies to undermine the security of their devices. And so I don't think you can, you know, assess the consequences of that decision in the context of this particular case. It's important to look at all of the consequences that would flow from requiring tech companies to break the security of their devices. And every computer security professional out there will tell you, it's a disastrous idea for security to force tech companies to do that because you can't control what happens next.

  • 10:25:37

    ABDOAnd, you know, Jim points to other countries doing this. I don't think there's any country out there that has forced Apple to break its product in a way that the FBI is trying to hear. And the reason why Apple has moral standing to resist those sorts of demands right now is precisely because it's not giving that authority to the U.S.

  • 10:25:57

    PAGEJim, what do you think? Would Apple be less able to resist foreign governments if it gives in on this case?

  • 10:26:02

    LEWISI'm not sure they have resisted foreign governments. This is largely an issue of brand. This is largely an issue of trying to recover some credibility in the market. It's not about backdoors, it's not about compromising products. Google, for example, makes very strong encryption that's very difficult to break. But it is recoverable. And so that's the word we want to put in place here is, can I recover the plain text under a court order? And if the answer is yes, everybody's happy.

  • 10:26:31

    BARRETTWell, one of the big unanswered questions is, exactly how are the products different in other countries? How are the phones different in other countries? As a reporter, I don't feel like I have a straight answer to that at this point. This case may actually force some of those answers out there. It may also force answers on, does Apple essentially already have this capability in their own shop, but they haven't written it for this specific phone yet? Those are big questions and I think that Apple may be forced to answer as a result of this case.

  • 10:27:00

    PAGELet's go to Silver Spring, Md., and talk to Rob. Rob, hi, you're on the air.

  • 10:27:05

    ROBHi. Thanks for taking my call. I think Alex has made a great case. All the government is asking is that Apple disable the password counter so that the government can try millions and millions of passwords on that one particular phone. I think, if this is so great -- if the encryption was so great, why isn't it being used on our banks and our credit cards and everything else that we use? I mean, Apple could make billions of dollars selling the encryption too. And then, also, I liked the last comment about, I bet you the British wouldn't stand for Apple to just say no.

  • 10:27:51

    PAGEAll right, Rob. Thanks very much for your call.

  • 10:27:53

    BARRETTWell, in fact, banks do use a lot of encryption on their records. But they're also, you know -- it's funny, the government actually points to banks as the prime example of what they would like Apple to behave like, in that, yes, they keep their data very secure. Yes, bank records are very important. And, you know, hackers should not be able to move money around willy-nilly. But the banks, according to the government, use encryption responsibly and carefully and in a way that still allows the government to access those records with a court order.

  • 10:28:19

    PAGEJim Lewis, in this particular case, how important is it for the investigators to get into this particular iPhone? How much difference does it make?

  • 10:28:26

    LEWISWe don't know. And that's why it's important. These are cops. And cops are used to checking every box and crossing all their Ts. And they're going to want to know what's on that phone. And you can see how, this won't come to a court, but in a court, the defense attorney would ask, did you look at the phone? And if the police say no, it undermines the case. They're trained to look at complete details.

  • 10:28:47

    PAGEI'm Susan Page and you're listening to "The Diane Rehm Show." We're taking your calls, 1-800-433-8850. Or send us an email to drshow@wamu.org. Let's go to Valerie calling us from Newport News, Va. Valerie, you're on "The Diane Rehm Show."

  • 10:29:04

    VALERIEHi, thanks for having me. My question is, if they are so concerned about authoritative regimes getting this information and using it to their advantage, why didn't they do this quietly out of the public eye?

  • 10:29:18

    PAGEAll right. What do you -- Alex? Who wants to take that question?

  • 10:29:22

    ABDOWell, I think it seems obvious to most people watching that the government is doing this so publicly, in part, to establish the legal precedent. That the goal of the government's request here is to make clear that they have the authority to do this. You know, there were emails that were leaked a couple months ago relating to the encryption debate, about whether a company should be able to use strong encryption, suggesting that very senior lawyers in the administration said that we need a terrorism case in which to make our case. And so they seem to have picked this one. They've landed on their case. And I worry that that's going to distort the consequences. Because the consequences are far afield from terrorism.

  • 10:29:59

    ABDOYou know, sophisticated criminals and sophisticated terrorists know how to use encryption that does not rely on an intermediary like Apple. So if we break the security that these companies can provide to everyone, the result is not going to be that the government has an easier time going after sophisticated criminals and terrorists, because those people will migrate away from these products to the countless other ones that are available that, again, don't rely on intermediaries like Apple. And so that's the real question. Is it worth breaking everyone's security for the sake of the people who are not sophisticated enough as criminals to use the other tools available to them.

  • 10:30:34

    BARRETTI think all that's correct, but I think the government isn't trying to break encryption as an entire entity. What the government is trying to do is keep, you know, unbreakable encryption out of the hands of millions and millions of people and make it essentially the default setting for your life, which from their point of view as investigators, means it's the default problem in many of their cases and that they can't see certain things that may solve crimes. And it's not just about terrorism and it's not just about suspects' phones. Some of these cases are about victims' phones. People who were dead that investigators can't open the phones for. It's hard to imagine that dead person would not want their phone to be opened if that might help find the killer.

  • 10:31:13

    BARRETTThese are serious issues and everyone's got a valuable point to make. But I think, as much as people say, well, we shouldn't make decisions based on terrorism. Agreed. But there are lots of other things that are important, too.

  • 10:31:23

    LEWISAnd this is encryption Kabuki theater. FBI is acting out their desire to get companies to help them. And Apple is acting out for a global stage. So encryption is really hard. It's not that easy to do. And you can count on people to make mistakes. That's part of why having a company like Apple offer a product that gives end-to-end encryption to anyone who wants it creates some concern.

  • 10:31:50

    PAGELet's talk now to retired Air Force General Michael Hayden. Welcome to "The Diane Rehm Show."

  • 10:31:57

    GEN. MICHAEL HAYDENThanks, Susan. Good to be with you.

  • 10:31:59

    PAGEGeneral Hayden has a very unique -- a unique perspective. He's the only person ever to have headed both the NSA and the CIA. And just today his memoir is being published. It's titled, "Playing to the Edge: American Intelligence in the Age of Terror." Let's talk first about this particular case. Do you think Apple should be forced to provide access to this particular iPhone?

  • 10:32:19

    HAYDENWell, I've listened with great interest to the folks you've already had on, Susan. And they're making some very powerful points. Here's how I parse it out. In terms of the ability, universally, to get through backdoors in the universe of Apple products: absolutely not. I think the United States -- the people of the United States can better secure both their privacy and their security by having end-to-end, unbreakable encryption. So let me just say that. Now, it remains to be seen how much of a one-off the San Bernardino case really is.

  • 10:32:53

    HAYDENAnd I do take Jim Lewis' point that we've got a bit of theater going on here. And one of your other panelists pointed out that this was carefully chosen by the government and carefully chosen to make public, because they would have the weight of public emotion on their side in the San Bernardino case. But, frankly, I'm trending towards the Bureau to get into this phone, unless of course Apple or others can show to me how this focused, specific concession, which isn't really breaking the encryption, somehow leads to this other universe over here about which I agree with Tim Cook, we shouldn't go.

  • 10:33:31

    PAGEWhy is it, in your view, does it endanger national security to give law enforcement agencies easier access to digital communications like these?

  • 10:33:42

    HAYDENYeah. Susan, easier access is easier access. And given the totality of threats to American security -- and, look, I realize this and, frankly, you know, you have talked, that's part of the theme of the book I just wrote. You know, these are all gray areas. This is all about tradeoff. This is not a simple forces of white, forces of darkness conversation. It's balancing virtues. And I get it. It's going to make the FBI's job a bit harder in many cases. But, that said, step back, look horizon to horizon. Americans are safer and more secure if the encryption on their phone is tougher and tougher to break.

  • 10:34:22

    HAYDENAnd, look, I used -- as you said, I used to head up NSA. You put an enabler in that system, you put a backdoor in that system, despite your best efforts to keep that key under lock and key, services around the world and even high-end criminal groups around the world are going to move heaven and earth to exploit that vulnerability you've just baked in to the system.

  • 10:34:45

    PAGEYou know, I think some people would think a former head of the NSA and the person who was in charge when that controversial surveillance program collecting metadata on phone calls was put in place -- a program you continue to defend -- I think some people would be surprised that you would take this attitude. Have you gotten any feedback from your former spies?

  • 10:35:04

    HAYDENI will say, other members of my tribe have felt free to send me some emails asking, are you being quoted correctly? But, Susan, this is very important, Mike Chertoff, former secretary of Homeland Security, on this broad question about universal enabling of devices -- Mike Chertoff is where Mike Hayden is, as is Mike McConnell, who is also a former director of NSA. And, most peculiarly, we only discovered each other's views by accident. We didn't develop them in harmony. We each came to this conclusion independently. And it's the same argument. You know, it's all about security. That's what we're trying to do for America.

  • 10:35:46

    HAYDENAnd, on balance, the defense here -- the ability to create this really solid defense -- trumps the occasional need to enable our offense.

  • 10:35:56

    PAGEWe're almost out of time but I think Jim Lewis has a quick question to ask.

  • 10:35:58

    HAYDENHey, Jim.

  • 10:35:59

    LEWISHi, Mike. How are you? I was going to kid him about the fact that when we were doing this in the '90s, he sounded a little different. I generally agree with him, with this one caveat, and that is that during that encryption debate, the then-DCI, I remember, walked into the room one day and said, I want unbreakable encryption to be available and the FBI objected. And he said, no encryption is unbreakable. That's my problem. I'll take care of it.

  • 10:36:25

    HAYDENNow, Jim, you bring up a great point. And, Susan, let me just elaborate a minute. I mentioned Mike McConnell as being one of the former directors kind of in the same place I am. Jim knows that Mike lived this movie in the '90s for something called Clipper Chip. And Mike when to the mats, kind of arguing the way Director Comey is arguing now, and he lost.

  • 10:36:47

    HAYDENAnd Mike will tell you today that, after he lost, NSA put their collective heads together and launched the greatest 15 years in the history of electronic surveillance because we figured other ways to go out and get information. Now to be fair, NSA has authorities to do that kind of stuff that the FBI will never have. So it's more peculiarly an FBI problem.

  • 10:37:11

    LEWISRight. Right.

  • 10:37:12

    HAYDENBut Jim's right, we can go after this.

  • 10:37:14

    PAGEGeneral Michael Hayden, thank you so much for joining us.

  • 10:37:17

    HAYDENThank you.

  • 10:37:18

    PAGEWe're going to take a short break. When we come back, we'll talk about what General Hayden just said. And we'll go back to the phones and take your calls and questions. Stay with us.

  • 10:40:02

    PAGEWelcome back, I'm Susan Page of USA Today, sitting in for Diane Rehm. In the studio with me, Devlin Barrett from The Wall Street Journal and Jim Lewis from the Center for Strategic and International Studies. And from New York we're joined by Alex Abdo of the American Civil Liberties Union. You know, we just heard from General Michael Hayden, the former head of the NSA and CIA. I wonder, Alex, were you surprised by his perspective on this particular issue because he came down, on the broad debate, on the side of the ACLU.

  • 10:40:29

    ABDOWell, I'll say that I may never say this again in my life, but I find myself in general agreement with General Hayden. And in particular this point. This is, I think, the crucial point to understand about backdoors. When you create a backdoor, you create a single point of failure, and the problem with having a single point of failure is that it becomes an irresistible target to foreign governments and sophisticated criminal hacker organizations.

  • 10:40:54

    ABDOAnd in Apple's particular case, the single point of failure will be the fact that that company will, in this world where it can be forced to hack its customers, have to have a division set up to comply with the hundreds of requests that even just the New York district attorney, Cy Vance, is going to be sending to Apple. That division will become the single point of failure. And it's not just going to be our phones, it's not just going to be our Apple devices, it's going to be every Internet-connected device that you have in the home, your TV that has a video built into it, your fridge that responds to your verbal commands and God knows what else you might put into your bathroom or bedroom.

  • 10:41:30

    ABDOAll of those devices are going to be subject to hacking orders from the U.S. government to those companies who make them.

  • 10:41:38

    PAGEI'm not sure I think of my refrigerator as something that holds a lot of private information, but I take your point on some of the other general devices. Jim Lewis, what about that? What about just the general sense that it makes you subject in every aspect of your life to the government knowing what you're doing?

  • 10:41:51

    LEWISOh, well, gee, that would be terrible because right now it's only giant companies that know every aspect of my life and have turned on the cameras and do all this. I'm okay with that, you know, because jeepers, no, I'm not okay with it. And so we're talking about a broad failure of privacy and the need to rethink it. Government should not have access without a warrant, but companies shouldn't have untrammeled access because I'm getting some crummy service from them.

  • 10:42:18

    LEWISAnd God knows what would be in my bathroom, but I certainly don't want them checking me out there.

  • 10:42:22

    PAGEDevlin, where does the American public stand on this? Where do -- what does polling tell us about what the public thinks on this issue?

  • 10:42:29

    BARRETTSo far the polling suggests that the public opinion is narrowly for the FBI in this argument. It's about 51 percent saying the FBI should prevail in this case, about 38 percent saying Apple should prevail in this case. But I do think that also masks the reality, which is that there is a -- you know, there is a privacy segment of the population that cares very, very strongly about this.

  • 10:42:52

    BARRETTYou know, I think in some ways it's a little bit like the death penalty in that there are a lot of opinions held, and none of them are held particularly strongly, but there is a core group of people who are very active and very vocal who care a great, great deal.

  • 10:43:06

    PAGEThe Pew Research Center put out some polling yesterday with that 51-38 divide. One -- there are a couple things I thought was interesting about their poll. One was that there wasn't a partisan divide. Republicans and Democrats didn't feel differently. There was, as you might expect, a somewhat age divide, where younger people were more concerned about privacy. When you got to seniors, they were much less -- they were much more comfortable with the FBI going into this. Where do you think public opinions is on this, Alex?

  • 10:43:30

    ABDOWell, it's -- I think it depends on how you ask the question. If you ask, you know, the average American whether they think the government should investigate a particular terrorist case vigorously, then of course they're going to say yes, and I would say yes, too. But if you asked should the government be able to establish the precedent it's trying to establish in this case, then I suspect you'll get a different response.

  • 10:43:49

    ABDOBut, you know, you pointed out something really interesting about that poll, which is that it shows that the younger generation is the one most particularly concerned with privacy, and I think that contradicts the conventional wisdom about the younger generation being the ones willing to give it up. And I think that's important because I think people have misjudged the younger generation, which is, you know, the generation of Snapchat.

  • 10:44:09

    PAGEWell, Jim Lewis, you mentioned that this case was carefully chosen, or maybe Alex was the one who mentioned that this case was carefully chosen by the FBI. Here's a question that goes to that general point. It's from Jim, who writes us from Whitehall, Virginia. He writes, what if a phone was suspected to have details regarding a massive attack on the homeland, like a dirty bomb? Would Apple rather preserve privacy than save thousands of lives? Alex, what about that question? What if there was something really crucial, a ticking time bomb, that would be available if the law enforcement officials could break into an iPhone?

  • 10:44:42

    ABDOWell, you know, that's the exactly that the government or its supporters always trots out when it wants to ask people to do the unthinkable. That was the defense given for torture. And I think bluntly, the ticking-time-bomb scenario in whatever context it arises is a terrible, a terrible scenarios to use to make broad policy. We shouldn't design our systems around those sorts of emotionally fraught circumstances, where it's difficult to assess the consequences that will be felt for years to come.

  • 10:45:14

    BARRETTAnd the -- you know, that's pretty much right. Justice is very shrewd in picking cases that are going to be difficult for anyone to oppose. I mean, I think Apple is committing hari-kari in the public eye, but at the same time we have to recognize that if you allow this kind of technology, the risk of a successful attack will increase. How much? We don't know. But that's a choice for the public. They may be willing to accept some increase in risk in order to have greater privacy from both government and companies.

  • 10:45:47

    LEWISAnd there's an important implication of that ticking-time-bomb scenario, whether you believe that that's likely or not. What the government is asking for here, what the FBI wants here, is actually technically and legally much easier to do than that sort of scenario. So what all the lawyers I've talked to on this subject say if the government fails here, if the FBI can't get this, they will never get close to getting data in real time, what's called in data in motion as opposed to data at rest.

  • 10:46:15

    LEWISI mean, what we're talking about here is a dead man's phone. If you can't get a dead man's phone, you are not going to get a living man's phone.

  • 10:46:22

    PAGEYou know, let's talk to the public. We've got some people calling us with their views. Roger's calling us from Cincinnati. Roger, what do you think?

  • 10:46:28

    ROGERHi, thanks for taking my call. I just want to say, I kind of see this as a Fourth Amendment issue. Once we do this, you know, there's no putting Pandora back in the box. And just another quick point, the point of terrorism is to terrorize and to change -- to effect change in the targeted country or regime. And if we allow, you know -- I'm sorry, if we allow ourselves to become scared and change, then, you know, we're essentially letting them win.

  • 10:46:58

    PAGERoger, thanks so much for your call. So you would come down on the side of Apple on this issue?

  • 10:47:03

    ROGERAbsolutely, in fact my respect for Apple has gone up considerably since this took, you know, center stage.

  • 10:47:10

    PAGEAll right. All right, Roger, thanks for your call. Now just quickly, let's take a caller who I believe has a different point of view. Saul is calling us from San Antonio. Saul, what's your view?

  • 10:47:19

    SAULHi there. My concern is if Apple doesn't comply with FBI, what message is that going to send for other terrorist groups, who now believe that they now have a channel in which will be unbreakable, and it can now use iPhones and cell phones, knowing that the law is going to protect all encryption data to be released and encourage further use of smartphones for terrorist exchanges.

  • 10:47:47

    PAGESo Saul, you think Apple should have to comply with this court order?

  • 10:47:51

    SAULI think publicly if they do not showcase that there is always going to be a bend towards the law and protecting national security and the public, I think it's going to send a message to terrorist groups that this is a good channel to use because it's secure, and they're not going to be able to hack into the information.

  • 10:48:11

    PAGEAll right, Saul, thanks for you call. So Jim Lewis, you're nodding your head.

  • 10:48:14

    LEWISSure because the Fourth Amendment, if I remember it correctly, says the government can't conduct unreasonable searches. But the person who decides, the group that decides whether the search is unreasonable or not is the courts. And so the court decided here. If Apple wants to fight this, go back to court. I agree completely that we don't want to be steamrolled by the emotionalism of terrorism, but one difference between the 1990s debate, where we thought the world was going to be a happy place and the end of war, and now is that we do face greater risk. So we have to rethink the decisions we made almost 20 years ago.

  • 10:48:52

    PAGEAlex, what do you think about Saul's point?

  • 10:48:55

    ABDOWell, to me this is not a Fourth Amendment question but a Fifth Amendment one, of whether the government can conscript a U.S. company into service for the government. Listen, I have no sympathy for the privacy rights of, you know, the dead individual in this case, who should be subject to, you know, government investigation. But the question is the broader legal one of whether the company can be conscripted, and that sets a dangerous precedent.

  • 10:49:19

    PAGESo Saul sees it as a Fourth Amendment issue, Alex sees it as a Fifth Amendment issue. We have a caller who says he thinks it's a 13th Amendment issue. Michael, hi, what do you say?

  • 10:49:30

    MICHAELWell, the question isn't whether or not Apple has to open its records and produce something that already exists. The question is that they have to actually do work for the government against their will. That's slavery. And the 13th Amendment prevents slavery. The fact that the government intends to pay them for that work is irrelevant. It's 40 acres and a mule after the fact.

  • 10:49:57

    MICHAELWe know even in professional baseball, Flood versus Kuhn, you cannot be forced to work against your will, even if you're a highly paid baseball player.

  • 10:50:06

    PAGEYou know, Michael, that's an interesting perspective. Alex?

  • 10:50:12

    ABDOWell, I'm not a scholar on the 13th Amendment, but I think the general point is the right one, which is that forcing a U.S. company into government servitude is a significant -- is a significant thing. And there are circumstances in which the government can do it. When the government is forcing a company to turn over information it has to testify as to information relevant to an investigation, then the government unquestionably can do that.

  • 10:50:34

    ABDOThe -- what this case raises, though, is the question of whether the government can go further, can force Apple to write software it doesn't have to hack into its customer's devices.

  • 10:50:43

    PAGESo here's an email from Rob, and Rob writes, can the panel acknowledge that the password on this phone was changed after the phone was in custody? What's the significance of this? Devlin, maybe you can explain. I find this very confusing in the news accounts that I've read. What happened on this particular phone?

  • 10:50:59

    BARRETTLet's talk about technology. Okay, so here's what happened. The key issue in the case between Apple and the FBI is that there is a month and a half period before the attacks when Syed Farook's iPhone is not backing up its data to the cloud. What the government most wants is to find out what's on that phone from that period.

  • 10:51:17

    BARRETTImmediately after the attacks, the owner of the phone, San Bernardino County, essentially to give the government access to Farook's iCloud storage backup data, reset the iCloud password. Now that becomes important because as the FBI -- when they did that, when they reset that password, the FBI was then able to look at the data on the cloud storage. So they were able to see some things. But what happens after that is when Apple says it doesn't want to comply with what the FBI wants, it says to the FBI, well, you should take his phone to his home Wi-Fi and plug it into a power source because often a phone will automatically back up just in that setting.

  • 10:51:58

    BARRETTBut because the password had been reset previously, the phone was very unlikely to do that. Both sides, what's -- and I apologize for the long geek-out, but both sides basically disagree on the technical implications of what's in his phone, which is part of what's interesting about this. This isn't actually just a legal fight. The two sides, to some degree, disagree about how this phone worked.

  • 10:52:19

    PAGEIf they had not reset the password, would they have been able to do what Apple suggested, do we think?

  • 10:52:25

    BARRETTThe FBI says they don't believe so because they believe Farook manually -- manually turned off the data backup. Apple says they don't see anything that tells them that it was a manual shutoff of the backup. They just disagree.

  • 10:52:37

    PAGEI'm Susan Page, and you're listening to the Diane Rehm Show. So Alex, where are others in Silicon Valley on this? Is the industry united?

  • 10:52:47

    ABDOFrom public statements, it seems to be, and I think on the broader question of whether the government should be able to insist -- force companies to install backdoors in their products, the companies are unquestionably consistent in their views, and they're uniform in their opposal of -- their opposition to what the government is trying to do. And that's an important point, one that's often overlooked.

  • 10:53:09

    ABDOYou know, director James Comey says this can be done, we can have companies install backdoors in their products and still keep those products secure. And every security professional around the country thinks exactly the opposite. And you just heard General Hayden a few minutes ago echoing those views.

  • 10:53:26

    PAGEIs -- but Devlin, I think that I saw a story, perhaps it was written by you, that some others in Silicon Valley weren't actually running to Apple's defense. They were pretty cautious in their statements. And we heard yesterday from Bill Gates, taking the FBI's point of view on this.

  • 10:53:39

    BARRETTRight, Bill Gates came out and said, you know, he thinks with a court order Apple should provide this kind of service, that he thinks Apple's argument doesn't make sense to him. He seems to be retreating from that slightly today. It's not clear to me exactly what distinction he's drawing between what he said yesterday and what he's saying today, but yeah, there is not uniformity here.

  • 10:53:57

    BARRETTI do think that Silicon Valley genuinely, generally, believes very strongly that the government is wrong here. But there are certainly folks, BlackBerry is another one, who think that Apple is wrong.

  • 10:54:09

    PAGEAnd law enforcement, Jim, is law enforcement generally united on this issue on the other side?

  • 10:54:14

    LEWISYeah, it's probably globally united. I mean, the issue we have is that the Internet is in transition, and the business models that might have made sense 10 years ago don't work anymore. And so what we see around the world is law enforcement agencies want access to data, but citizens want more control over their own data.

  • 10:54:32

    LEWISI was really struck by a remark that Angela Merkel made at a dinner, where she said I don't want to be a data colony of the United States. She wasn't just talking about NSA.

  • 10:54:42

    PAGEHere's a caller, Ben, from Grand Rapids, Michigan, who asks, why are they having a hard time cracking into the phone when private parties do it all the time when they steal your information?

  • 10:54:51

    BARRETTWell, there's cracking and cracking, right. You can crack into easy phones. They are easy phones to break into, and there are hard phones to break into. I think everyone agree that the current, modern version of an iPhone is a hard phone to break into.

  • 10:55:02

    PAGEWe had Tim Cook call for congressional hearings, that the FBI should withdraw its court case, and we should have a big debate on Congress. What do you think about that, Jim?

  • 10:55:10

    LEWISWe all know that Congress is the place you go where you -- when you want action. So let's set up a commission, too, commission, Congress. Hey, that'll take us about, what, 40 years to figure out what to do. We don't have 40 years to wait. Go to the courts. The courts have -- now to be fair, and this gets to the slavery point, there is a law called the Communications Assistance of Law Enforcement Act, it's about 20 years old, where the government makes the phone companies give them access, and they pay them for it, a puny sum.

  • 10:55:40

    LEWISBut ultimately Congress will need to think about this, but not this case, please.

  • 10:55:44

    PAGEYou know, actually all three people on our panel laughed at the idea of Congress forming a commission to study this, so I guess that's not a starter. You know, Devlin, you've made the point that the tech companies will always win because of the advance of technology.

  • 10:55:58

    BARRETTYeah, and Jim may differ with me on this, but I really think when you watch the play -- this stuff play out month to month and year to year, the tech companies have a structural advantage. And if this were a race, this is a race between a Subaru hatchback, an old Subaru hatchback, and a brand new Dodge Charger. The courts and the Congress are just never going to keep up with every new software update. The software companies, if they want to, they can code around whatever the law says.

  • 10:56:22

    BARRETTAnd so, I mean, Jim's view, I think he could express it better, but Jim's view is that if they apply their tech power, the government can actually keep up, I'm frankly skeptical on that.

  • 10:56:32

    PAGEAlex, do you think that's a safeguard from your point of view, that tech companies will be able to work around whatever it is the courts, the government says they have to do?

  • 10:56:40

    ABDOI think the companies will comply with the law, but there's no question that they're trying to advance the state of the security on their devices. But I want to go back to something, you know, Jim said a minute ago because I agreed with him, that, you know, we're trying to grapple with what the Internet means for security and privacy in our country. But lost, I think, in the conversation is a recognition by law enforcement that our lives are now more transparent than ever before as a result of technology, and they have access to more data than they've ever had before.

  • 10:57:06

    ABDOSo what Apple is trying to do is just restore a little bit of control to its users through encryption.

  • 10:57:10

    PAGEAnd that's definitely a changing world we're living in, and I'm afraid we're out of time. I want to thank you all of you for joining us, Alex Abdo, Jim Lewis, Devlin Barrett. Thanks for being with us on the Diane Rehm Show.

  • 10:57:20

    BARRETTThank you.

  • 10:57:20

    PAGEI'm Susan Page of USA Today, sitting in for Diane Rehm. Thanks for listening.

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