By: Andrew Berube
Though it may not be mainstream news yet, a battle over your privacy has been waging on since the dawn of the internet and we may soon see the outcome as the conflict starts to bubble over.[1]Messaging apps like WhatsApp and iMessage are encrypted, meaning messages can only be viewed by the sender and intended recipient.[2]This makes the message more secure between the parties, but it may also be the perfect environment for criminals to conduct illegal activities.
On October 4, 2019, Attorney General Barr, along with officials from the United Kingdom and Australia, published an open letter to Facebook CEO Mark Zuckerberg asking the company to halt its plans on end-to-end encryption on messaging appssuch as WhatsApp, Instagram, and Messenger in order to stop illegal activity that occurs on these sites.[3]This push was based on the Department of Justice’s (DOJ) mission to “safeguard the public, investigate crimes and prevent future criminal activity. . . [by] stop[ping] criminals and abusers in their tracks”.[4]In response to the open letter from the DOJ, “[m]ore than one hundred civil society groups . . . signed . . . [an] open letter to Zuckerberg, encouraging him to continue increasing security on Facebook messaging services”.[5]On December 9, 2019, Facebook responded to the government officials saying it would not weaken its end-to-end encryption across its messaging apps because “‘backdoor’ access . . . for law enforcement would be a gift to criminals . . . creating a way for them to enter our systems and leaving every person on our platforms more vulnerable to real-life harm”.[6]
In January 2020, news broke that Apple refused to unlock two iPhones used by Mohammed Saeed Alshamrani, the suspect of the shooting at the U.S. Navy base in Pensacola, Florida, in December 2019, when Attorney General Barr and the Trump administration asked for the tech company’s help.[7]However, this was not the first time Apple and the Justice Department have gone to battle over data privacy. In 2016, the FBI wanted to break into the iPhone used by the mass shooter in San Bernardino, California.[8]However, unlike in the recent case at the Naval Base, the FBI, in 2016, found a third party to unlock the phone, giving up the court battle and leaving the question open to whether the government can compel Apple to unlock their devices for criminal investigation.[9]Apple continues to argue that building a backdoor would create a vulnerability for all of its products.[10]“[I]f the FBI had a tool to extract information for legitimate reasons, criminals could use that same tool to extract health or financial data from a lost or stolen iPhone, foreign governments could use that tool to spy on Americans, and so on”.[11]
Many tech companies, including Apple and Facebook, and civil society groups have argued that weakening any part of an encrypted system would weaken it for everyone, everywhere.[12]“There is no middle ground: if law enforcement is allowed to circumvent encryption, then anybody can.”[13]In Facebook’s response to the DOJ, they noted, “[i]t is simply impossible to create such a backdoor for one purpose and not expect others to try and open it . . . the real winners would be anyone seeking to take advantage of that weakened security”.[14]
With the great debate over privacy on messaging apps intensifying, it seems more likely that the government will not back down until the question is answered to whether they can compel tech companies to unlock devices for criminal investigation. Even if the question is not answered in court after this most recent incident in Pensacola, it is sure to come up again and again.
However, we must not lose sight of the big picture.By creating a government backdoor, law enforcement is not only invading the privacy of bad actors but more importantly, they are leaving the general public vulnerable to potential harm if and when the bad actors gain access.Backdoor access for one is a breach of privacy for all.
[1]Dain Evans, Why the US government is questioning WhatsApp’s encryption, CNBC (Feb. 22, 2020, 9:31 AM), https://www.cnbc.com/2020/02/21/whatsapp-encryption-under-scrutiny-by-us-government.html.
[2]Id.
[3]Julian E. Barnes, Katie Benner, & Mike Isaac, Barr Pushes Facebook for Access to WhatsApp Messages,N.Y. Times(Oct. 4, 2019),https://www.nytimes.com/2019/10/03/us/politics/barr-whatsapp-facebook-encryption.html;Ryan Mac & Joseph Bernstein, Attorney General Bill Barr Will Ask Zuckerberg To Halt Plans For End-To-End Encryption Across Facebook’s Apps, BUZZFEED NEWS (Oct. 3, 2019, 3:28 PM),https://www.buzzfeednews.com/article/ryanmac/bill-barr-facebook-letter-halt-encryption;U.S. Dep’t of Justice, Attorney General Barr Signs Letter to Facebook From US, UK, and Australian Leaders Regarding Use of End-To-End Encryption (Oct. 3, 2019),https://www.justice.gov/opa/pr/attorney-general-barr-signs-letter-facebook-us-uk-and-australian-leaders-regarding-use-end.
[4]Barnes et al., supranote iii.
[5]Andrew Crocker & Joe Mullin, The Open Letter from the Governments of US, UK, and Australia to Facebook is An All-Out Attack on Encryption, ELECTRONICFRONTIERFOUNDATION (Oct. 3, 2019),https://www.eff.org/deeplinks/2019/10/open-letter-governments-us-uk-and-australia-facebook-all-out-attack-encryption; Joseph L. Hall, Open Letter: Facebook’s End-to-End Encryption Plans, CENTERFOR DEMOCRACY& TECHNOLOGY(Oct. 4, 2019), https://cdt.org/insights/open-letter-facebooks-end-to-end-encryption-plans/.
[6]Will Cathcart & Stan Chudnovsky, FACEBOOK’S PUBLIC RESPONSE TO OPEN LETTER ON PRIVATE MESSAGING, FACEBOOK (Dec. 9, 2019), https://cdn.vox-cdn.com/uploads/chorus_asset/file/19446144/Facebook_Response_to_Barr_Patel_Dutton_Wolf___1_.pdf.
[7]Kif Leswing, Apple’s fight with Trump and the Justice Department is about more than two iPhones, CNBC (Jan. 16, 2020, 1:13 PM),https://www.cnbc.com/2020/01/16/apple-fbi-backdoor-battle-is-about-more-than-two-iphones.html.
[8]Id.
[9]Id.
[10]Id.
[11]Id.
[12]Will Cathcart & Stan Chudnovsky, FACEBOOK’S PUBLIC RESPONSE TO OPEN LETTER ON PRIVATE MESSAGING, FACEBOOK (Dec. 9, 2019), https://cdn.vox-cdn.com/uploads/chorus_asset/file/19446144/Facebook_Response_to_Barr_Patel_Dutton_Wolf___1_.pdf.
[13]Id.
[14]Id.
