Tag Archive | "security"

Photo Cred: WCCF Tech

The FBI and Apple, Inc.: National Security v. Privacy

Photo Cred: WCCF Tech

Photo Cred: WCCF Tech

In January of this year, President Obama’s top intelligence advisers met with Apple’s CEO, Tim Cook and other technology leaders to discuss their long-standing disagreement over the encryption safeguards built into their devices. The Federal Bureau of Investigation requested Apple help unlock an iPhone used by Syed Rizwan Farook, one of the San Bernardino murderers who killed 14 people on December 2, 2015. Apple refused. On February 16, 2016, the United States District Court for the District of California issued an order compelling Apple to assist the FBI by enabling the search of the Farook’s iPhone. Tim Cook called the FBI’s request “chilling” and a “dangerous precedent” to set. The FBI requested that Apple create and digitally sign a special version of iOS, which would be modified in three ways, as specified on page 8 of the court order:

  1. iOS can be set to erase its keys after 10 incorrect passcode guesses. The FBI wants software with this feature disabled.
  2. iOS imposes increasingly long delays after consecutive incorrect passcode guesses to slow down guessing (this is commonly called rate limiting). The FBI wants software that accepts an arbitrary number of guesses with no delays.
  3. iOS requires individual passcodes be typed in by hand. The FBI wants a means to electronically enter passcodes, allowing it to automatically try every possible code quickly.

At the time, Apple worried the FBI’s application of the All Writs Act of 1798 would allow the government to force Apple into taking further steps, and used the example of surveillance software that could intercept and capture all data on an iPhone.

The All Writs Act is a 227 year old, general-purpose law allowing a court to require third parties’ assistance to execute a prior order of the court when “necessary or appropriate.” Many feared that should the U.S. government prevail in this case, it could be used to justify law enforcement efforts to get around encryption technologies in other investigations far removed from national security threats. Additionally, some feared the government could ask to use this power proactively, before a suspected terrorist attack. Is this really a possibility? Perhaps, but not certainly.

Ultimately, this case pitted a strong, governmental interest in ensuring its national security against an individual’s fundamental right to privacy. Many continue to wonder whether the U.S. can claim national security concerns justify the hacking into all iPhones. However, two legal roadblocks prevent such an occurrence.

First, in the U.S., the Fourth Amendment grants a measure of privacy for “persons, houses, papers, and effects” from “unreasonable searches and seizures” while requiring that warrants be issued based only on probable cause. Second, the international human right to privacy, arguably a customary norm of international law, as codified in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), place limits on a State’s ability to interfere with the right to privacy.

But the courts weren’t faced with making this determination. On March 28, 2016, the Justice Department withdrew its legal effort to compel Apple to assist the U.S. government claiming it had unlocked the iphone without assistance from the tech company. Despite the U.S. government’s successful iphone hack, on April 8, 2016, the Justice Department said it would continue to try to force the tech company to help in criminal probes based on the All Writs Act justification.

Interference into an individuals’ right to privacy is illegal where it is arbitrary and not prescribed by law. As a threshold matter, the invasion must be prescribed by domestic law and have certain clear and precise safeguards. Second, and probably the limiting factor, is that the interference must not be arbitrary. The European Court of Human Rights’ jurisprudence on the subject has allowed a claim of national security threats to supersede an individuals right to privacy. However, these national security threats must be concrete, and the interference may not be “blanket and indiscriminate.” Thus, a State would not be justified in the surveillance of any and all phones absent a clearly defined threat to such State.

In sum, international law already accounts for the fear’s individuals express over a ruling in favor of the government. Should Apple fail in its “fight the good fight” attempt, individuals need not worry about the government being enabled.

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Prison in Melilla Guardia Civil. Credit to: http://www.hrw.org/sites/default/files/media/images/photographs/2014_Spain_MelillaGuardiaCivil.jpg

Critical Analysis: A critique of Spain’s Public Security Law

Currently before Spain’s Senate is the Ley Orgánica de protección de la seguridad ciudadana (“Public Security Law”). This bill has already passed through the lower house of Parliament, Congreso de los Diputados, and is expected to soon pass through the Popular Party controlled Senate. The Public Security Law has come under great scrutiny with opponents referring to it as the “gag law” because a significant portion of the law restricts public protest. However, this article is going to focus on the equally, if not more so, problematic portion that would legalize the summary return of migrants crossing into Spanish territory. This article will briefly summarize the contextual and legal issues related to the concept of “rejection at the border.”

To understand why Spain would introduce a bill like this, it is important to know a little background on the

Prison in Melilla Guardia Civil. Credit to: http://www.hrw.org/sites/default/files/media/images/photographs/2014_Spain_MelillaGuardiaCivil.jpg

Melilla Guardia Civil enclave city. Credit to: http://www.hrw.org/sites/default/files/media/images/photographs/2014_Spain_MelillaGuardiaCivil.jpg

issue. Between 2012 and 2013, Spain saw a 49 percent increase in the number of persons entering the enclave cities of Ceuta and Melilla. Additionally, applications for asylum in Spain increased to 4,502 in 2013, compared to 2,544 in 2012. The numbers of persons housed at the Melilla center gives credence to the mass numbers of persons that Spain is now trying to manage. As of June 12, 2014, the center housed 2,161 persons, which is four times its capacity of 480 persons. Primary increases in migrants are coming from Mali, Central African Republic, and Syria.

Over the last year, there were roughly sixty-five pre-dawn attempts by hundreds of migrants to storm the barbed wire fences separating Ceuta and Melilla from Morocco. Amnesty International reported that Spain is using unlawful deportations and reported accusations of excessive use of force by border guards in this region. Many who reach the fence surrounding Melilla must wait on the fence until the Guardia Civil force them down and return them to Morocco. For example, on February 2, 2015, the Guardia Civil summarily returned about 100 migrants to Morocco. Additionally last month, Moroccan forces completed a massive raid of the makeshift mountain camps outside Melilla in an effort to stop the attempts to cross the Spanish border. This capture and release effort resulted in migrants being released in the southern regions of Morocco.

The implementation of the Public Security Law would allow Spain to formalize the summary return of migrants, a violation of international law. While it should be recognized that the law does create additional protective procedures to try to prevent violations to international laws, it is questionable whether these procedures would have any effect on ground behavior. Spain is already a signatory of Convention relating to the Status of Refugees and the Convention Against Torture. Both of which enshrine the international principle non-refoulement, prohibiting the return of migrants when they would be subject to persecution or torture in their nations of origin. Without procedures in place to process migrants that cross the border, Spain is seriously risking violating these Conventions.

Numerous international organizations have spoken out against this law and have attempted to encourage Spain to look to other options. Nevertheless, with the Popular Party controlling the Senate, it is probable that the bill will pass; at least some version of it. This seems particularly true given Spain’s interior minister, Jorge Fernández Díaz’s, eagerness to have the summary expulsion law. Mr. Díaz does not want to consider migrants to have entered Spanish territory until they have crossed the “police line.” It is unclear what action, if any, the international community would take, but with legal concrete action by Spain, some evaluation may be necessary.

Alison Haugen is a 2L at Denver University Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

Prison in Melilla Guardia Civil. Credit to: http://www.hrw.org/sites/default/files/media/images/photographs/2014_Spain_MelillaGuardiaCivil.jpg

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University of Denver Sturm College of Law