I still remember the news footage taken from a helicopter hovering over a bullet-ridden black Ford Expedition, in which the perpetrators Syed Rizwan Farook and Tashfeen Malik had fled and were killed in, during a shootout with police.
There have been so many mass shootings in America since, including last year’s horrific killing of 58 concertgoers in Las Vegas, that the grim memory of San Bernardino has faded.
But the tragedy has had a lasting legacy in unexpected ways. In the months after the shootings, the FBI attempted to enlist the support of phone-maker Apple to gain access to Syed Rizwan Farook’s iPhone 5C as part of their investigation into what was being labeled a terrorist attack. The FBI wanted Apple to create a new operating system they could install on the dead shooter’s phone that would bypass security features. It would also serve to give the FBI access to iPhones in future criminal investigations too.
Apple famously refused, telling the FBI that giving in to a demand to “hack our own users” would set a precedent undermining the privacy of all iPhone users.
“While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect,” he wrote in an open letter to customers at the time.
This was just a couple of years after the Edward Snowden leaks, which revealed the extent to which government security agencies were secretly gathering masses of internet data. The big tech companies, keen to shore up trust, rushed to introduce end-to-end encryption to services like WhatsApp, Gmail and iMessage, making the argument that if their customers’ data was invisible to them, they couldn’t hand it over to the authorities.
FBI vs Apple
There were tense meetings between then-president Barack Obama and Apple chief executive Tim Cook, who didn’t resile from his position. Eventually, the FBI found a company that could break the phone’s encryption, paying them nearly US$1 million to do so. The issue died down as a technical fix broke the impasse. But politicians have continued to push the issue calling for new legislation that would force tech companies to allow law enforcement agencies access to encrypted systems.
In the wake of the San Bernardino massacre, President Trump made his feelings on the issue plain, calling for a boycott of Apple products.
“Who do they think they are?" He complained to the hosts of Fox & Friends.
Since then, he has been relatively silent on encryption, but his officials and US senators have been quietly working on the issue with a view to drafting encryption circumvention legislation that they know will face stiff resistance from the tech sector and its K Street lobbyists in Washington D.C.
Governments elsewhere have the same goal in mind as they struggle to track the online communication of suspected criminals and terrorists. An attack in London last May that saw a man drive his car into pedestrians, killing four people, opened the encryption debate in Britain.
The killer had apparently sent a message on the encrypted WhatsApp platform hinting at what he was about to do, moments before he ploughed into unsuspecting pedestrians. It led Theresa May to call for her security services to be given the ability to circumvent encryption systems.
Five Eyes stand together
The UK’s Investigatory Powers Act or ‘Snooper’s Charter’ introduced in 2016 gives British law enforcement agencies some powers to require network operators to remove “electronic protection” from communications and data. But it isn’t seen as strong enough to demand backdoors to encryption services, particularly for services delivered from outside the UK.
New Zealand introduced similar legislation in 2013, with the Telecommunications (Interception Capability and Security) Act. That requires internet providers to make their networks interception available to government agencies armed with a warrant. But it only applies to “network operators” - it is unlikely that the law could be used to demand Apple or Microsoft retrieve encrypted data for the New Zealand Police or the GCSB.
The issue hasn’t flared up in New Zealand in recent years, but our membership of the ‘Five Eyes’ security partnership with Australia, the United Kingdom, the US and Canada could propel us towards the legal changes other countries are pursuing.
Meeting earlier this year, the Five Eyes issued a joint statement stating their preference for technology service providers to “voluntarily establish lawful access solutions to their products and services that they create or operate in our countries”.
Then came the veiled threat:
“Should governments continue to encounter impediments to lawful access to information necessary to aid the protection of the citizens of our countries, we may pursue technological, enforcement, legislative or other measures to achieve lawful access solutions.”
Backlash in Australia
Across the Tasman, the Liberal Government is pushing ahead with mandatory measures.
The so-called Assistance and Access Bill proposes three levels of assistance that tech companies and internet providers could be required to lend law enforcement agencies. At the lowest level, voluntary assistance could be offered, with the highest level of assistance seeing the country’s attorney general requiring tech companies to “build a new capability” into their systems to allow access to encrypted information.
The Bill has been slammed by Apple and other multinational tech companies as being too ambiguous and wide-ranging as well as by privacy and encryption experts.
“This is not a solution to the problem of just-in-time policing and border force security but an override on the freedoms of everyday Australians and Australian companies, or even those doing business in Australia,” says Professor Katina Michael, a technology and innovation expert at the University of Wollongong and Arizona State University.
“Privacy is a human right, and one way that right can be maintained in today's digital transactions is through encryption.”
Apple reiterated its call that breaking encryption systems will undermine security for everyone.
“This is no time to weaken encryption,” it wrote in a submission on the Bill.
“There is a profound risk of making criminals’ jobs easier, not harder. Increasingly stronger — not weaker — encryption is the best way to protect against these threats.”
The Australian Computer Society saw no reason to expedite the legislation which it described as “problematic”.
Technically, it can be done
But Dr Richard Adams, Adjunct Fellow in the School of Information Systems at Curtin University, said that while tech companies had an obligation to protect their customers’ data, they also had obligations to the “wider community”.
“The challenge is for manufacturers to meet the needs of both groups rather than adopt the best stance from a marketing/cost perspective,” he says.
With that in mind and the legislation putting the onus on the tech companies to come up with ways to grant security services access to encrypted services, it was time to consider what technical solutions could be offered to meet the government half-way.
“A simplistic solution on phone devices would be to store the data twice, once with the ‘user key’ and once with the ‘manufacturer key’ so the strength of the encryption itself would not be affected and the risk of having two ‘keys’ could be mitigated by the use of a very complex manufacturer key requiring physical access to the device,” he says.
“Obviously there would be push-back on the additional storage required and reduced battery life but the point is that from a purely technical standpoint it could be done relatively easily."
With the Five Eyes member countries all at different stages in pushing for stronger laws to deal with encrypted services, such technical efforts to assist governments will need more serious consideration.
The alternative is heavy-handed legislation that is not fit for purpose, rammed through by governments with a larger law enforcement agenda.
But Michael says we also need to consider the threat to privacy posed by the companies that are opposing efforts to circumvent encryption, which are wielding immense power themselves through their access to masses of our data.
“The complexity here is in the fact that private corporations like Apple, Google, Facebook, Amazon and Microsoft are amassing so much personal data that citizen data rights are being equally eroded by corporations themselves who share the data with third parties,” she says.
“We need to take a step back as Australians and ask ourselves why these private corporations are fighting this government bill together?”