DHS proposal to collect social media data from visa-waiver travelers is invasive, costly, and ineffective

By Danielle Kerem

A new Department of Homeland Security proposal, currently under review, asks that visitors entering the United States under the Visa Waiver Program disclose Facebook, Twitter, and other online usernames in order to facilitate government analysis of all visa-waiver applicants’ social media activity and connections. Today, Restore the Fourth and a coalition of over two dozen human rights and civil liberties organizations sent a letter to U.S. Customs and Border Protection outlining the program’s disproportionate risks, excessive costs, and other serious shortcomings as well as encouraging CBP to dismiss the proposal. As our letter explains, the proposed program would “invade individual privacy and imperil freedom of expression while being ineffective and prohibitively expensive to implement and maintain.”

The collection of online identity data would offer DHS a window into travelers’ private lives as well as provoke the expansion of unwarranted surveillance activity. Moreover, an online identity data collection program – while enforced on all visa-waiver applicants in theory – will likely exacerbate existing discrimination against Arab and Muslim travelers by inviting contextless scrutiny of these visitors’ social media content. Moreover, this “disparate impact will affect not only travelers from visa-waiver program countries, but also the Arab-Americans and Muslim Americans whose colleagues, family members, business associates, and others in their social networks are exposed to immediate scrutiny or ongoing surveillance, or are improperly denied a visa waiver because of their online presence.”

In addition to the program’s negative consequences for privacy and freedom of expression, the collection of travelers’ social media usernames will also prove to be a strikingly ineffective method of detecting genuine national security risks as “individuals who pose a threat to the United States are highly unlikely to volunteer online identifiers tied to information that would raise questions about their admissibility to the United States.” The proposed screening methods will instead yield a flood of social media data, data unlikely to generate any actionable intelligence, and lead to an escalation of costs that would “render the proposal prohibitively expensive and with no conclusive benefits to the mission of DHS.” As such, we join our 27 partners in asking that CBP decline to implement this invasive, costly, and ineffective program.

Letter

http://restorethe4th.com/wp-content/uploads/2016/08/DHS_Social_Media_Screening.pdf

Press Coverage

http://www.politico.com/tipsheets/morning-tech/2016/08/clinton-and-kaine-fundraise-in-silicon-valley-215995

http://arstechnica.com/tech-policy/2016/08/rights-groups-decry-plan-to-inspect-social-media-of-us-bound-tourists/

http://thehill.com/policy/technology/292236-proposal-to-monitor-social-media-comes-under-criticism

Press Release

http://restorethe4th.com/wp-content/uploads/2016/08/CBP_Screening_Proposal_Letter_Press_Release.pdf

Restore the Fourth had a strong showing from around the country at this year’s HOPE XI conference. Brian Hofer and aestetix of RT4 San Francisco hosted the talk ‘Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security‘ regarding their fight against a DHS Domain Awareness Center in Oakland, CA. RT4 Chairman Alex Marthews spoke on the chilling effects of government surveillance on citizens’ online activity in his talk ‘Surveillance Gives Me Chills‘. RT4 ally and ACLU lawyer Matt Cagle appeared on panel for ‘Only You Can Stop Police Surveillance‘. And RT4 launched ‘Episode Zero’ of the forthcoming RT4 podcast ‘Privacy Patriots‘ on Radio Statler, with host Fongaboo, Zaki Manian and Alex Marthews.

 

Spy Hard with a Vengeance: How One City Stood Up to the Department of Homeland Security

Brian Hofer & aestetix, RT SF

 

Surveillance Gives Me Chills

Alex Marthews, RT4 National Chair

 

Only You Can Stop Police Surveillance

Matt Cagle, Mariko Hirose, Jared Friend

 

Archive is forthcoming at http://radio.hope.net/archive.html

Why “more surveillance” is not the answer to the atrocity in Orlando

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By: Alex Marthews, National Chair

After the appalling deaths of 49 people, and injuries to another 53, at a gay nightclub in Orlando this week, the presidential candidates leapt to push their own agendas. For Trump, it was about immigration; he magically transformed the US-born shooter into an Afghan, in order to emphasize that he was right about banning Muslim immigration. For Clinton, it was about gun control; she called for better background checks and limits on obtaining assault weapons. But when it came to surveillance, they might as well have been singing from the same hymn-sheet.

Clinton called for an “intelligence surge,” for increased internet surveillance and suppression of First Amendment-protected speech, to prevent “radicalization”; for propaganda promoting a US-government-seal-of-approval version of Islam; praised a “Countering Violent Extremism” (CVE) program that marks for intervention Muslims whose politics deviate from what the FBI thinks acceptable; and suggested that people on due-process-free terrorism watchlists should not be allowed to buy guns. Then, she wrapped her actual policy proposals in a cotton-wool language of diversity and inclusion, and claimed that this is not “special surveillance on our fellow Americans because of their religion.” She talked about “Islamism” rather than “Islam”, in order to claim to not be against Islam in itself—but in her world, the government gets to define who is a good and who is a bad Muslim. Perhaps the “bad Muslims” in her mind include citizens like Ayyub Abdul-Alim, imprisoned for refusing to inform on other Muslims for the FBI, who seems only have wanted to help strengthen his community; or Tarek Mehanna, imprisoned for translating al-Qaeda documents and posting them online, who held atrocious opinions but never planned or participated in a violent attack.

Trump, with a little less cotton-wool, actually says much the same about surveillance. Domestically, the “Muslim community” will “have to cooperate with law enforcement and turn in the people who they know are bad”, which is what CVE is intended to achieve, and what Mr. Abdul-Alim is in prison for resisting. Trump proposes an “intelligence gathering system second to none” that “includes better cooperation between state, local and federal officials,” and says that intelligence and law enforcement are “not being allowed to do their job.” And he wraps this up with vehement expressions of solidarity with the LGBT community.

There’s no evidence that mass surveillance, conducted and promoted by the government, works. In every country that is hit with any attack, large or small, there are calls for more surveillance, then more attacks, then more surveillance, then more attacks. It’s a vicious ratchet that we can only step off by becoming aware of it. France implemented its mass surveillance law before the Paris attacks: The law didn’t prevent them. France now lives under a state of near-martial law, where what we would call ordinary First and Fourth Amendment rights have been suspended. Britain is in the process of passing a new surveillance law that will enable the government to view your browsing history without a warrant, and already outlawed “glorifying terrorism.” They have gone farther along this ratchet than we have, but they are not reducing their chance of being attacked; instead, the purpose is to reduce the chance that a given politician will be blamed for “not doing enough” against terrorism. In truth, there is no perfect safety, and there is a small proportion of violent criminals in every country that the State is ultimately powerless to eliminate.

Our own mass surveillance systems led this “lone wolf” to be found and interviewed by the FBI, twice. But neither Clinton nor Trump articulate clearly what they thought the FBI should have done next, perhaps because there’s nothing more the FBI could lawfully have done regarding allegations of terrorist affiliation. If the aim of surveillance is for the FBI to interview suspected “radicals,” what should they do then to prevent an entirely hypothetical attack? Preventively detain them, without charge or trial, as happened to Jose Padilla? Preventively shoot them before they kill anyone else, as happened with Usaama Rahim? Do we want a State that, claiming to keep us safe, claims the right to do that to any of us? We are already part-way down that road; has it helped us so far?

State surveillance cannot save us from mass violence. It’s a poor guarantor of LGBT people’s safety. The sad truth is that there is a tendency to violence in every human being’s heart, irrespective of religion. Guns help violent people carry out their violent fantasies on a larger scale, and while comprehensive background checks wouldn’t have helped with this attack, the evidence suggests that they would probably help to prevent others. Mass surveillance doesn’t even enjoy that evidentiary advantage; last time the surveillance agencies were actually confronted on their assertion that mass surveillance had helped to prevent terrorist attacks, during the debate over the renewal of Section 215 of the PATRIOT Act, the agencies’ claims shriveled under scrutiny like an ice-cream in the sun.

More than that, the State perpetrates mass violence on a scale much vaster than a single violent, conflicted misogynist. On a daily basis, the lives the State takes in the name of the War on Terror far exceed the number of lives taken by terrorists. We’re busy implementing a cure that causes more pain than the disease, because the State does not value enough or see enough glory in a more peaceful path. Why, then, should we trust the State with more power over the lives of Muslims and other “extremists,” here or abroad?

Instead of the State, we should look to each other. We should consider how we can build bonds of friendship and support that will encourage kindness, courtesy, and an appreciation of our mutual humanity. As we volunteer together, worship together, take care of loved ones together, work on good causes and reach out across lines of race and religion to those in distress, we step by step build the thriving “beloved community” of which Martin Luther King spoke long ago, so that even when attacks happen, they cannot break our bonds to one another. And so long as we work to trust one another, we can guard safely our thoughts, our opinions, and our liberties, even against a State that urges us constantly, for the sake of “safety,” to abandon them.



By Zaki Manian, National Board Secretary and Chair of RT4 San Francisco Bay Area

CkXmG_vUkAALihcToday, an idea that was born in the Restore the Fourth Legislative Working Group almost 2 years ago became law. Our idea was to block a strategy by which mass surveillance had been quietly creeping into our communities. The federal government had been quietly funding local police departments’ purchases of powerful surveillance technologies that were deployed with great secrecy. These included cell phone interception equipment and automatic license plate readers.

Our strategy for blocking these technologies was to encourage municipalities to start to regulate surveillance technology in the broadest possible manner. We felt that to be effective, an ordinance would have to do three things:

– Require public debate and a usage regulation before the equipment was deployed
– Require annual reporting how the surveillance technologies were being used
– Require criminal penalties if these regulations were intentionally avoided

The law that was adopted in Santa Clara is the first in the country to do these 3 things. We think passing this law will be a firewall against the secret adoption of current and future surveillance technologies like mass biometric collection.

Along the way, we learned that the California ACLU was working on the same problem and we collaborated closely on the model ordinance. We could not have done this without the tireless efforts of Tessa, ACLU Northern California’s community organizer and Tracy from the Oakland Privacy Working Group.

Our next steps are to pass a similar ordinances in communities across the country. The process has already started in Palo Alto, Oakland, Santa Cruz and Alameda. Today’s unanimous vote will massively accelerate the process. We need Restore the Fourth members to start work on bringing this ordinance to city councils nationwide, especially in Southern California, New York and Illinois. Reach out for more on how to get involved.

Ordinance:

Surveillance Technology Ordinance

Press Release:

Santa Clara Press Release

The FBI’s Campaign to Expand the Scope of National Security Letters Endangers Privacy and Encourages Abuse

By Danielle Kerem

The latest manifestation of federal law enforcement’s efforts to circumvent the Fourth Amendment and degrade the security of Americans’ electronic data has taken the form of a secret provision introduced into the text of the Senate’s annual intelligence authorization bill as well as a proposed amendment to the Electronic Communications Privacy Act. The provisions would allegedly “give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.”

Restore the Fourth has joined a coalition of 25 civil society organizations, businesses, and trade associations in expressing our strong opposition to this expansion of the National Security Letter (NSL) statute, an expansion that would enable the government to access a broader class of Electronic Communication Transactional Records (ECTR) and obtain “sensitive information about users’ online activities without court oversight.” Since the enactment of the 2001 USA Patriot Act, the FBI’s NSL authority has radically expanded and, in 2015, the agency made 48,642 warrantless demands for information – often accompanied by gag orders prohibiting recipients from revealing the request’s existence.

In our letter to lawmakers on Capitol Hill, we explain that the widening scope of administrative subpoenas “would paint an incredibly intimate picture of an individual’s life,” as the ECTRs – generally limited to phone and bank records – would now potentially include “a person’s browsing history, email metadata, location information, and the exact date and time a person signs in or out of a particular online account.”

Moreover, the letter highlights the FBI’s past violations of the NSL statute and contends that the proposed expansion would only exacerbate the pattern of abusive investigatory practices. In fact, a 2007 Department of Justice review of the FBI’s procedures concluded that the agency was guilty of “serious misuse of the FBI’s national security letter authorities”. For these reasons, the coalition concludes our letter with a demand that lawmakers honor the Senate’s commitment to effective monitoring and oversight by removing language from both bills that would expand the government’s warrantless access to Americans’ internet data and erode consumer privacy rights.

For Letter:

ECTR Coalition Letter

Media:

https://www.washingtonpost.com/world/national-security/fbi-wants-access-to-internet-browser-history-without-a-warrant-in-terrorism-and-spy-cases/2016/06/06/2d257328-2c0d-11e6-9de3-6e6e7a14000c_story.html

The Fourth Amendment Applies More Broadly than the Government is Making Out

mexican-american_border_at_nogales-copy

By Danielle Kerem

Restore the Fourth filed an amicus brief today at the United States Court of Appeals for the Ninth Circuit. The case, Araceli Rodriguez v. Lonnie Swartz, concerns the shooting death of 16-year-old Jose Antonio Elena Rodriguez and raises critical Fourth Amendment questions with potentially significant consequences for American law enforcement conduct both abroad and at home.

On October 10, 2012, Jose Antonio was gunned down by United States Border Patrol agent Lonnie Swartz while walking home following a game of basketball in his Nogales, Mexico neighborhood. As he walked along a public street parallel to the U.S.-Mexico border, the teenager was shot in the back approximately 10 times by agent Swartz, who fired multiple rounds through the border fence from his position on American soil. Jose Antonio bled to death a short time later.

In July 2014, Jose Antonio’s mother – Araceli Rodriguez – filed a civil lawsuit in Arizona against the agent responsible for his death, alleging that Swartz had violated her son’s Fourth Amendment rights by using excessive and unjustified force. In response, Swartz’s legal team moved for dismissal of the case on the grounds that Jose Antonio was a Mexican citizen killed on Mexican territory and consequently not protected by the U.S. Constitution.

The court, however, partially denied the defendant’s motion, instead affirming that “under the facts alleged in this case, the Mexican national may avail himself to the protections of the Fourth Amendment and that the agent may not assert qualified immunity.” In July 2015, Swartz appealed the district court’s decision. In February 2016, the United States filed an amicus brief objecting to the district court’s finding that Jose Antonio benefited from Fourth Amendment protections and supporting reversal of the ruling. The Department of Justice contended that the “Fourth Amendment does not extend extraterritorially to aliens without significant voluntary connections to the United States,” grounding this interpretation in the 1990 United States v. Verdugo-Urquidez Supreme Court decision.

In today’s amicus brief, Restore the Fourth – through our counsel at Subbaraman PLLC and the Harvard Law School Cyberlaw Clinic – advances two core arguments to address the Government’s misrepresentation of Fourth Amendment protections as well as misreading of the relevant case law. First, we contend that the Fourth Amendment, at a minimum, requires government searches and seizures of anyone to be reasonable. Second, we insist that the “substantial and voluntary connections” test articulated in United States v. Verdugo-Urquidez determines what constitutes a reasonable search or seizure only when this test can be administered:

Restore the Fourth files this brief in order to address the United States’s misreading of Verdugo-Urquidez. The plurality did not erase the Fourth Amendment’s core demand that all government searches and seizures be “reasonable”—even extraterritorial searches and seizures of aliens. See Boumediene v. Bush, 553 U.S. 723 (2008). Rather, the plurality merely established that the Fourth Amendment affords the government reasonable latitude when it is capable of reviewing an alien’s connections with the United States before searching or seizing him. Here, by contrast, Agent Swartz killed J.A. without any such review. His actions were thus patently unreasonable, even if one were to conclude that J.A. lacked substantial voluntary connections to the United States.

According to Alex Marthews, National Chair of Restore The Fourth, “since the misinterpreted Verdugo-Urquidez decision in 1990, we have built new and oppressive structures of immigration control, foreign policy and mass surveillance on the basis of being able to ignore some people’s unalienable rights, even in times of peace. The Fourth Amendment cannot be twisted to support this. Jose Antonio’s family, and every family affected by U.S. state power, deserve better.”

Amicus Brief:

http://restorethe4th.com/wp-content/uploads/2016/05/Restore-the-Fourth-Rodriguez-v-Swartz-1.pdf

CVE Initiatives Perpetuate Discriminatory Law Enforcement Practices and Threaten Freedom of Expression

By Danielle Kerem

Belmont, MA – Today, Restore the Fourth and a coalition of civil rights organizations sent a joint letter to President Obama asking that he re-evaluate the ill-conceived and ineffective Countering Violent Extremism (CVE) program. According to the government, CVE is an interagency initiative designed to “develop and implement a full-range of partnerships to support and enhance efforts by key stakeholders to prevent radicalization and recruitment to violence by terrorist organizations.” However, in practice, the program undermines community trust and cohesion, stigmatizes Muslims and Arab Americans, as well as risks criminalizing First Amendment-protected speech.

In particular, the coalition’s letter to the President outlined concerns related to the CVE program’s planned establishment of Shared Responsibility Committees (SRCs) – committees that would task educators, health workers, and religious leaders with identifying and reporting ‘radicalized’ community members. According to Restore the Fourth National Chair Alex Marthews, the SRCs “make a mockery of professional confidentiality, because the people they interview don’t know that the professional they’re interacting with is feeding information back to the FBI.”

In addition to cultivating a climate of distrust, the CVE program also endangers freedom of expression. For instance, the FBI’s “Don’t Be a Puppet” website promotes the policing of ideas by encouraging “members of the public and particularly teenagers to identify and report language they regard as being ‘extreme’ or ‘radical’.” Moreover, the government has been working aggressively to enlist the cooperation of Silicon Valley technology firms in facilitating “counter-messaging and content monitoring initiatives” on social media platforms.

According to Sue Udry, Executive Director of the Bill of Rights Defense Committee / Defending Dissent Foundation, “CVE programs incorrectly, and unconstitutionally, focus on political and religious beliefs to cast suspicion on Muslims and dissidents. These programs are fanning the flames of Islamophobia, and must be opposed.”

In light of the lack of empirical research to support CVE programming as well as the serious concerns expressed in relation to the CVE initiative’s threats to freedom of expression, the letter to President Obama concluded with a call for the President to re-route “the funds for CVE to programs with better evidentiary basis for their positive effect on levels of violence.” The White House’s decision to do so would send an important “message to American Muslims and critics of the U.S. government’s foreign and domestic policies that you can indeed hold any belief that the First Amendment protects, without fear of U.S. government harassment.”

Complete Letter:

CVE Letter

Press Release:

CVE Press Release

100 days have passed since a pro-encryption petition at SaveCrypto.org surpassed 100,000 signatures. According to the White House’s own terms of participation, petitions that have collected over 100,000 signatures can expect a substantive response from the President within two months. Today, after waiting 167 days for President Obama’s reply, Restore the Fourth — along with 36 other academics, NGOs, and companies — sent a letter to the President “to respectfully request that the White House specifically oppose legislation to undermine security and reiterate the need for a broad statement of support for encryption from the administration.”

The Hill‘s recent publication of draft anti-encryption legislation written by Senators Richard Burr (R-NC) and Dianne Feinstein (D-CA) elevated existing concerns about the Administration’s delay in addressing the petition. The Burr-Feinstein bill would viscerally undermine privacy, security, and innovation by “forcing nearly all U.S. companies to decrypt any encrypted data they may handle.” As the letter explains:

Last week, the text of a draft bill written by Senators Burr and Feinstein was published…It is difficult to take this draft seriously. It has been broadly written to require that all internet companies, and in fact ‘any person who provides a product or method to facilitate a communication or the processing or storage of data,’ either undermine the security features they offer users or offer lesser security so as to facilitate government access. This definition includes institutions that many, including government agencies and representatives, rely upon to protect our most sensitive data. It is beyond dispute that this bill would threaten the safety of billions of internet users, including journalists, activists, and ordinary people exercising their right to free expression, as well as critical infrastructure systems and government databases. However, it would likely to do very little to assist in investigations of crime or terrorism, since those who engage in illegal activities will have access to other means to protect their own devices and communications.

“We created We the People because we want to hear from you,” reads the introduction on the White House’s online petitioning platform. Restore the Fourth, our co-signatories, and tens of thousands of petitioners have spoken, and we would like to hear President Obama affirm his commitment to safeguarding American security and privacy by rejecting Burr and Feinstein’s dangerous proposal.

Signatories include: Access Now, Advocacy for Principled Action in Government, American Library Association, American-Arab Anti-Discrimination Committee (ADC), Bill of Rights Defense Committee/Defending Dissent Foundation, British Columbia Civil Liberties Association, Canadian Access and Privacy Association (CAPA), Canadian Institute of Access and Privacy Professionals (CIAPP), Center for Democracy and Technology, Center for Media Justice, Committee to Protect Journalists, Constitutional Alliance, CREDO, Demand Progress, Electronic Frontier Foundation, Engine, Fight for the Future, Free Press Action Fund, Hackers/Founders, IPVanish VPN, New America’s Open, Technology Institute, Niskanen Center, OpenMedia, PEN American Center, Privacy and Access Council of Canada – Conseil du Canada de l’Accès et la vie Privée (PACC-CCAP), La Quadrature du Net, Reinst8, Restore the Fourth, R Street Institute, Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC), the Tor Project, Venture Politics, X-Lab, and Eric Burger; Georgetown University, Ian Goldberg; University of Waterloo, James O’Keefe, and John Wunderlich

FBI’s Interactive ‘Anti-Extremism’ Website Stigmatizes Youth of Color and Deters Expression of First Amendment Protected Views

By Danielle Kerem

Restore the Fourth has joined a coalition of civil rights organizations in calling on the FBI to dismantle the agency’s “Don’t Be a Puppet” website and more broadly re-evaluate the FBI’s strategy for countering violent extremism. In a letter addressed to FBI director James Comey, Restore the Fourth – in conjunction with the Arab-American Anti-Discrimination Committee, American Civil Liberties Union, Bill of Rights Defense Committee, and ten other advocacy groups – expressed opposition to the “Don’t Be a Puppet” program’s promotion of ethnic, religious, and ideological profiling.

“Don’t Be a Puppet” is an interactive website that, according the FBI, aims to “open the eyes of teens to the devastating reality and deceptive messaging of violent extremism and to help strengthen their resistance to radicalization and possible recruitment. However, instead of effectively preventing extremist violence, the website “perpetuates profiling and negative stereotypes that Arabs, Sikhs, South Asians, Muslims and those perceived to be Muslim are prone to engage in extremist violence and encourages the policing of thoughts, ideas, and beliefs.”

The video game advises students to report acquaintances or friends who may be “traveling to places that sound suspicious.” As our letter notes, “this warning is extremely troublesome because of the subjective and vague concept of a ‘place that sounds suspicious’…there should be nothing inherently suspicious about traveling either to Saudi Arabia or Iraq, where some Muslim holy sites are located, bias could lead individuals to report innocent, constitutionally protected activity to law enforcement.” The website employs similarly ambiguous language in warning online visitors that the use of “code words or unusual language” may be a warning sign of someone planning to commit violent extremism.

Moreover, by deputizing teachers to look for “warning signs” in the classroom, the program risks undermining trust between students and instructors as well as hinders the “free exchange of speech, ideas, and debate on controversial topics because students are afraid of being labeled suspect and being reported to the police.” As Georgetown University Law Professor Arjun S. Sethi explains:

Teachers in classrooms should not become an extension of law enforcement. The program is based on flawed theories of radicalization, namely that individuals radicalize in the exact same way and it’s entirely discernible. But it’s not, and the FBI is basically asking teachers and students to suss these things out.

The website’s messaging is particularly troublesome given the chilling rise of Islamophobia in American schools. According to a California State University analysis, “hate crimes against Muslim Americans and mosques across the United States have tripled in the wake of the terrorist attacks in Paris and San Bernardino.” Sadly, children and adolescents have not been untouched by this spike in anti-Muslim bigotry. Last November, “a sixth-grade girl in the Bronx was reportedly attacked by three boys who tried to take off the hijab she was wearing, punched her and called her ‘ISIS’.”

In light of this intensifying climate of fear and suspicion, Restore the Fourth asks that Federal law enforcement not exacerbate religious and ethnic discrimination by perpetuating negative stereotypes of Arab and Muslim Americans. In addition to taking down the “Don’t Be a Puppet” website, Restore the Fourth urges the FBI to take into consideration the recommendations of a May 2015 9/11 Review Commission report that found that the FBI’s Countering Violent Extremism Office’s “current limited budget and fundamental law enforcement and intelligence responsibilities do not make it an appropriate vehicle for the social and prevention role in the CVE mission…such initiatives are best undertaken by other government agencies.” Accordingly, Restore the Fourth asks that the FBI instead invest in evidence-based investigations that protect public safety and don’t unjustly stigmatize communities of color.

Press Release

By Alex Marthews and Danielle Kerem

troyhorseLate Monday night, surveillance activists learned that the FBI was asking for a two-week postponement in the Apple v. FBI case — vacating a highly-anticipated hearing scheduled for the next day. According to the government, the FBI needed time to explore a newly discovered method for unlocking the iPhone given to San Bernardino killer Syed Rizwan Farook by his employer. Early signs suggest that this “new” technique will work, and the FBI seems likely to drop the case.

So, did we win?

The short answer is, sort of; but the dispute has “been deferred, not resolved” and this latest chapter has provided valuable insights into the trajectory of the encryption debate.

The FBI has been searching for a case that would enshrine into law their expansive and specious interpretation of the All Writs Act — an interpretation that would force companies to ensure the readability of data on devices sold to criminal suspects. The agency seemed confident that the San Bernardino attacks offered a suitable pretext and that the climate of mourning and fear that emerged in the wake of the shootings could be effectively exploited to advance these spurious legal claims — evidenced, in part, by the government’s solicitation of amicus briefs from relatives of the San Bernardino victims.

Events obviously didn’t unfold exactly how the FBI anticipated. Instead of recoiling in patriotic horror at Apple’s contumacious stance, other technology firms and cryptography experts largely went to bat for Apple. These critics voiced arguments that managed to persuade some members of Congress, like Senator Lindsay Graham. Crucially, even prominent surveillance backers publicly questioned the wisdom of the FBI’s legal battle with Apple.

In addition, this week’s developments strongly indicate that the FBI’s declarations — under oath — that an Apple-created software degrade was the only possible solution to the San Bernardino predicament may have amounted to perjury. ThScreen Shot 2016-03-25 at 4.14.04 PMis allegation is further buttressed by the FBI’s apparent reluctance to seriously consult with the NSA and other intelligence community officials as well as statements by several security experts — and NSA whistleblower Edward Snowden — casting doubt on the veracity of the FBI’s claims that Apple had the exclusive technical means of unlocking the phone

None of these developments are directly attributable to the awareness-raising efforts of activists, or to compelling commentary from public figures like John Oliver. However, the legal battle has provided civil liberties advocates with an opportunity to encourage the broader public to learn more about the privacy and security of their devices, and to make the case for greater skepticism of law enforcement claims. Yet, despite meaningful scrutiny of the FBI’s narrative in this case as well as the agency’s decision to temporarily withdraw from the Apple dispute, federal law enforcement has issued at least 12 similar, active All Writs Act orders involving iPhones and iPads running iOS 6 to iOS 9.

Moreover, in light of the greater than expected resistance to the FBI’s courtroom strategy, the agency may choose to gain traction by instead lobbying for Feinstein and Burr’s pro-backdoors bill in Congress. The lesson for the American public and our elected representatives is: Beware of the FBI’s claims, especially when those claims may be leveraged to set a troubling precedent with potentially wide-reaching, adverse consequences for consumer protection and the global privacy landscape.

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