Transparency and Public Scrutiny: FBI Searches for New Hiding Places

The 2015 USA Freedom Act is now enabling companies like Yahoo to release information about so-called National Security Letters (NSLs) from the FBI.   Not only were these extrajudicial writs simply issued with the approval of a Special Agent from an investigating office, they included indefinite gag orders that prevented recipients from even confirming they received a request from the FBI.    Used in increasing frequency since the early 1980’s, NSLs are a means to keep the FBI in the dark.  Although secrecy is needed during ongoing investigations, the law enforcement community needs transparency and public scrutiny to remain honest.
 
Citizens must be able to trust law enforcement when there is a need for secrecy, but that is only possible when authorities are open and honest when security is nonessential.  Indefinite gag orders simply serve to shield the FBI from public scrutiny, which empowers the corrupted.  Unfortunately, the FBI is resisting increased transparency.    This is made evident by the FBI’s attempt to exempt its national database of fingerprints and facial photos from the Privacy Act, which allows US Citizens to learn if the FBI has a file on them.  From the FBI’s iPhone hacking scandal, it appears the Bureau is trying to fine new powers to avoid transparency and scrutiny.

In February, 2016, California Magistrate Sheri Pym ordered Apple to create and supply the FBI with software that would allow the US government to breach the most effective security features of all current iPhone models.  The FBI claimed it needed Apple’s help to further its investigation into the San Bernardino shootings more than two months after the high profile incident occurred, the FBI’s abrupt reversal of its original position raises even more alarms.  Despite its insistence there not was no alternative, the FBI had the ability to hack the San Bernardino shooter’s iPhone 5C since 2013 with the help of its Israeli-based cyber security contractor Cellebrite.
 
If this inconsistency holds true, it suggests the FBI was plotting to abuse the US legal system to quietly secure its ability to violate the privacy of US citizens at will.  With the two suspects of the San Bernardino shooting dead and the lives of their associates under heavy scrutiny, the FBI could have only hoped to gain new evidence from the perpetrator’s smart phone that might reveal insights into the shooter’s thinking or connections to unknown suspects.  Given the timeline, the FBI could not honestly hope to gain new information that might prevent an imminent threat that qualifies as a clear and present danger, which is the legal benchmark for violating one’s rights. 
 
Coupled with the latest revelations and the FBI’s eagerness to help other law enforcement agencies unlock iPhones in other cases, it appears the intelligence community was simply using the incident to acquire “master keys” for all iPhones and set a new legal precedence. 
 
Along with the FBI’s unwillingness to inform Apple of the security weakness it eventually exploited and to assist the software giant in safeguarding the privacy of all Apple users against criminal and state-sponsored hackers, this underhanded approach to forced cooperation undermines the willingness of tech firms to cooperate with law enforcement.  In other words, the FBI expects Apple to cooperate with it, yet abuses the legal system to compel Apple to cooperate when it sets boundaries, attempts to publicly shame Apple when it pushes back, and seeks to secure its ability to hack Apple products.  The FBI is well on its way to making itself the enemy of the tech industry. 
 
That said, the FBI’s capability to hack an iPhone does not determine if the FBI has the legal authority to search someone’s property.  
 
Given the abuse of easy access to massive amounts of metadata by the NSA and CIA that was uncovered by the Edward Snowden Revelations, however, the FBI is asking Apple and the rest of the tech industry to ignore an unsettling history of national security overreach.  In fact, they undoing everything they did to prevent it from happening again. The Edward Snowden revelations demonstrated the 9/11 terrorist attacks gave America’s national security apparatus the rationale needed to ignore civil liberties in order to engage in unfettered intelligence gathering operations. 
 
From illegal wire taps to mass collections of so-called meta data, which enables analysts to understand intimate details of individuals’ lives, NSA programs, such as PRISM, exemplify a total disregard for a reasonable right to privacy as afforded under the Fourth Amendment.  Torture at the hands of CIA agents at the Guantanamo Bay detention camp, of course, demonstrates the lengths authorities are willing to go to circumvent legal limits placed on them. 
 
Just as the CIA and the George W. Bush administration argued that the torture of non-US citizens at Gitmo was lawful, because the Constitution did apply to noncitizens outside of the Country, the FBI may well be attempting to circumvent legal boundaries intended to serve as checks and balances.  Not only has the FBI tried to avoid the need to legally justify Apple’s forced cooperation through its use of the “All Writs Act,” which was part of the 1789 Judiciary Act, it is important to recognize Cellebrite is an Israeli-based subsidiary of the Japanese Sun Products Corporation.
 
Israeli may be a close friend of the United States and a major beneficiary of US military assistance, but Israel is a country in a perpetual state of war.  Although this may be the reason Israel controls somewhere around ten percent of the global cyber security industry and its National Cyber Bureau represents one of the world’s most aggressive efforts to foster private-public cooperation on cyber security, it has also left Israelis highly sensitive to even the most benign threats.
 
Furthermore, Israel’s cultural trauma tends to leave hardliners overly aggressive toward outsiders and, therefore, often negligent of civil liberties when it comes to non-Israelis.  This is particularly true for the Palestinian People, which has earned Israel scathing reviews from oversight groups like Amnesty International.   
 
Israeli’s efforts to criminalize activism against Israeli occupation and censor criticism of Israel across the entire internet demonstrates the need to scrutinize national security cooperation with Israel and Israeli firms.  More importantly, it suggests the FBI may be using Israeli firms in order to circumvent legal boundaries designed to protect the rights of Americans.  At the very least, it serves as an example of how the FBI plans to circumvent efforts to bring the US National Security apparatus out of the dark by expanding their legal authority and protections.