- - Wednesday, March 30, 2016

While now mooted because the FBI has broken the code, the media has been all over the legal struggles between the FBI and Apple — this as the FBI sought to require Apple to go behind the access code of the iPhone used by the Sacramento ISIS inspired terrorists.

The primary media spin was that Apple is the guardian of our privacy while the FBI is just another federal government agency intent on violating it. However, as more facts came out, the debate moderated somewhat, in that more thoughtful reports identified the fundamental tension in the debate as another post 9/11 balance between privacy and security.

But there’s much more to the story, and it’s the part that the tech and communications sectors hope never comes out — this because it draws into serious question their professed sincerity as the guardians of our privacy. It’s about big money, and here’s the background:

After the telephone monopolies broke up in the 1980s and ‘90s, there were many phone company start-ups. Driven mostly by easy money, they were oblivious to the reality that, from time to time, they would be served with warrants to produce telephone records and for wiretaps — both in ongoing criminal investigations and for national security purposes, i.e., FISA. In short, most of the new carriers didn’t know how to comply with court orders for lawful surveillances, and they were not interested in learning.

So, in 1994 and a carefully orchestrated legislative rush, Congress passed “CALEA” standing for the “Communications Assistance to Law Enforcement Act.” The law was drafted by the Justice Department — the agency having the most “equity” in the issue set — and it required telecommunications carriers to develop the technical capabilities necessary to comply with court orders.



But far more important — at least for the carriers — was that Congress also gave them millions of dollars to do what the law required them to do. And, many of the carriers then “contracted out” their obligations under the new law to so-called “trusted agents.” Later, the law was expanded to include Internet service providers.

CALEA set the precedent for the “new” concept that there was big government money for private telecommunications carriers and Internet providers to simply do what they were legally required to do. Stated alternatively, they didn’t have to budget and pay to design, build and operate the systems necessary to comply with the law — the government paid them to do it — and it was lots of free money.

So watch for this same concept in the Apple encryption case — and watch also as their privacy-based complaints melt away with piles of “free” taxpayer money.

Also starting in the ‘90s were various ideas to protect data from hackers, by using encryption — this has now become a huge moneymaker for the tech companies. There were several business models, including passive data storage services that offered backups for clients in case of natural disaster or destructive hacking.

Newer data protection services offer data storage with some unique features, and the encryption technology behind them improves almost daily. This new approach has users paying for secure data storage, paying for encrypted data storage and the latest wrinkle is paying for encrypted storage that nobody can get into, whether the request is pursuant to a court order or not.

So, a criminal cartel or terrorist enterprise, for example, operating under cover of a legitimate business, can now protect its data from anyone, including the system administrators — even when directed by court order. All for a big fee, of course.

So, don’t be fooled by these new “privacy” debates that involve encryption. Just like the “pop up” adds that appear on your browser based on your Internet shopping, your privacy is totally for sale — and so is total encrypted protection for even the worst of the worst terrorists and criminal enterprises. For example, what do we do when we are told that “the data simply cannot be accessed by anyone?” Should we believe it or do we simply have to pay more to get it? In short, it’s “pay them to secure it” and then “pay them to get it” — the key words here are: “Pay them.”

Daniel Gallington served in Washington and overseas for many years in senior national security and intelligence policy positions. He is an adjunct professor at the University of Illinois College of law.

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