“Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'” — Isaac Asimov
The Republican push to eliminate Obama-era consumer data protections is sparking a new national debate over online privacy, and putting internet companies on the defensive.
The measure blocking the online privacy rules is on the desk of President Trump, who is expected to sign it.
But the firestorm of controversy shows no signs of easing. Broadband titans such as AT&T and Comcast and web giants like Google and Facebook now find themselves under growing pressure over their privacy policies.
“We’ll definitely make it pretty clear what right was given away and the extent that it was given way,” vowed Ernesto Falcon, legislative analyst at the Electronic Frontier Foundation.
The rules passed by the Federal Communications Commission would have restricted internet service providers from selling consumer data deemed “sensitive,” including app usage information and web browsing history, without consent. That data is used for targeted ads directed at consumers.
The rules passed in 2015 with little fanfare, the result of the FCC’s net neutrality rules, which brought internet providers under the agency’s authority.
Critics, though, said the FCC rules treated broadband providers such as cable and phone companies tougher than internet companies such as Yahoo or Facebook, which are able to sell their consumer data under the Federal Trade Commission’s privacy framework.
Republicans moved quickly to kill off the FCC privacy rules that were slated to take effect later this year.
THE HOUSE OF REPRESENTATIVES joined the Senate Tuesday in voting to repeal new Federal Communications Commission rules that would have stopped internet service providers (ISPs) from using and selling consumers’ web browsing data without their consent.
But a look at the comments submitted to the FCC reveal that many of the opponents of the privacy regulation came not from any “community” but from groups with extensive financial ties to phone and cable companies — with some of their claims hinging on the absurd.
For instance, the League of United Latin American Citizens and OCA – Asian Pacific American Advocates, two self-described civil rights organizations, told the FCC that “many consumers, especially households with limited incomes, appreciate receiving relevant advertising that is keyed to their interests and provides them with discounts on the products and services they use.”
The smartphone you use reflects more than just personal taste … it could determine how closely you can be tracked, too. Privacy expert and TED Fellow Christopher Soghoian details a glaring difference between the encryption used on Apple and Android devices and urges us to pay attention to a growing digital security divide. “If the only people who can protect themselves from the gaze of the government are the rich and powerful, that’s a problem,” he says. “It’s not just a cybersecurity problem — it’s a civil rights problem.”
There are apps that can help people with diabetes keep track of their blood sugar and apps that can attach to a blood pressure cuff and store blood pressure information. I use an app called ZocDoc to schedule and manage doctor’s appointments. Every time I see a therapist or a primary care doctor or dentist, the data get stored in my personal account.
But we leave behind other trails of health data, too, from apps and activities that are sometimes only tangentially health related. When I walk down the street, an app on my phone logs steps as it bounces against my thigh. When I swipe a loyalty card at the pharmacy, the over-the-counter medications that I buy become bits of data attached to my name. Medical information can be gleaned from all this and more, says Nathan Cortez, a professor of law at the Southern Methodist University Dedman School of Law.
This week the NPR podcast and show Invisibilia explores how people change from the outside in. We look at an all-women debate team in Rwanda, a country that has declared gender equality. We look at twins who introduced an app into their relationship and how it changed them. And a man who met a bird that transformed his view of the world.
Those data aren’t always protected. A recent report from the Department of Health and Human Services showed that the vast majority of mobile health apps on the marketplace aren’t covered by the Health Information Portability and Accountability Act. “HIPAA is pretty narrow as far as these things go. It applies only to traditional entities [like hospitals, doctors and health insurance providers], and it’s not surprising. HIPAA was written by Congress in 1996 before we had health apps,” Cortez says.
Apps or devices used in conjunction with a doctor’s office or a hospital can’t share or sell your information. But there’s no definitive federal law governing what happens to the data that an app developer, tech company or private individual collects. Cortez and I spoke about what that means and what people can do with individuals’ data. This interview has been shortened for length and clarity.
So if you share your data with a physician or a hospital, then it’s covered under HIPAA. If you share it with someone like Apple, then it’s not?
In the showdown between Apple and the Justice Department over an iPhone used by one of the San Bernardino shooting suspects, one question has loomed large. Why hasn’t the FBI sought assistance from the National Security Agency—which employs some of the nation’s top hackers—to crack into the iPhone? Apple has touched on that question lightly in other briefs filed in the case, but today it focused on it more extensively in its latest brief submitted to the court.
“The government does not deny that there may be other agencies in the government that could assist it in unlocking the phone and accessing its data; rather, it claims, without support, that it has no obligation to consult other agencies,” Apple wrote, noting that FBI Director James Comey danced around the question of NSA assistance when asked about it during a recent congressional hearing.
And if the FBI can’t on its own break into iPhones without NSA help, it should invest in developing that capability, Apple says, instead of seeking unconstitutional ways to force tech companies to assist it.
“Defining the scope of the All Writs Act as inversely proportional to the capabilities of the FBI removes any incentive for it to innovate and develop more robust forensic capabilities,” Apple wrote. The company quotes Susan Landau, a professor of cybersecurity policy at Worcester Polytechnic Institute, who has said that “[r]ather than asking industry to weaken protections, law enforcement must instead develop a capability for conducting sophisticated investigations themselves.”
U.S. prosecutors filed a scathing attack against Apple Thursday in the court battle over access to the iPhone 5c used by one of the shooters in the San Bernardino terrorist attack that killed 14 people. The prosecutors accused the tech company of undermining core principles of American justice, deliberately blocking traditional law enforcement powers for marketing purposes and being more responsive to Chinese government requests than those made by U.S. Justice Department officials.
FBI Director James Comey testifies on Capitol Hill in Washington, Tuesday, March 1, 2016, before the House Judiciary Committee hearing on ‘The Encryption Tightrope: Balancing Americans’ Security and Privacy.’ ( AP Photo/Jose Luis Magana)
“Apple’s rhetoric is not only false, but also corrosive of the very institutions that are best able to safeguard our liberty and our rights,” Assistant U.S. Attorney for the Central District of California Tracy Wilkison wrote in arguing the company should have to comply with a court order to help the FBI gain access to the phone. “If Apple can provide data from thousands of iPhones and Apple users to China and other countries, it can comply with [the court order] in America.”
Much of blistering rhetoric in the March 10 government filing was designed to match the charged language Apple executives and lawyers used in response to a Feb. 16 court order that would have forced Apple to give the FBI access to the phone used by Syed Rizwan Farook, the County employee who was killed after he launched the attack.
But buried deep within the government’s filing Thursday is a less theatrical, more targeted attack on the central argument Apple has leveled in its defense: that the court is venturing into dangerous new territory by forcing Apple to create new software, rather than simply turning off programs it has already produced and sold.
The magistrate in the U.S. District of Central California ordered Apple to write software that would prevent the contents of Farook’s iPhone from being erased, allowing the FBI to safely crack the access code. Farook’s iPhone 5c, which belonged to the County, was automatically programmed to erase its contents after 10 failed attempts to guess its four-digit access code.
Apple resisted the order, saying it could lead to a dangerous expansion of government powers. Apple CEO Tim Cook wrote a strongly-worded letter to customers warning a victory by the government could lead to a “chilling” threat to privacy. Apple lawyer Ted Olson, the former Solicitor General of the United States under George W. Bush said the government was seeking “limitless” powers “that would lead to a police state.”
The Global Consequences of Apple’s Fight With the FBI
By now, the details of Apple’s fight with the FBI are well known: the FBI wants access to an iPhone belonging to the deceased terrorism suspect Syed Farook, who was involved in the San Bernardino, California, attack on December 2, 2015. Farook’s iPhone is encrypted, so the FBI wants Apple to issue a tailored software update that would allow it to bypass the encryption. Apple has responded by refusing to write special software that would eliminate its security protections.
For both sides, the stakes are high. Apple says that complying with the FBI’s orders would set a dangerous precedent, and the FBI hopes that the court will decide in its favor, which it claims would be “instructive for other courts.” There is no real middle ground. Apple might be willing to cooperate with the FBI to solve some terrorismcases (although it is not at all clear that Farook’s work-issued phone is hiding any substantial secrets). But if Apple did offer its help, the FBI and law enforcement authorities would surely be tempted to take advantage, expanding the areas on which they seek collaboration.
Apple and the FBI are also aware that their domestic fight may have serious international repercussions. The outcome of their dispute will create an important precedent for foreign law enforcement agencies that seek data from Apple and other technology firms such as Facebook and Google.
If the FBI wins its case, foreign law enforcement agencies will surely take note. Already, governments are increasingly forcing technology companies to give up their customers’ data, no matter where they are located. Brazil just jailed Facebook’s vice president for Latin America for a day to pressure Facebook to release data wanted for a criminal investigation. France’s Parliament has just voted for a legislative amendment that would impose prison sentences and fines on technology companies that refuse to cooperate in terrorism inquiries. If the FBI wins a concession from Apple, Apple may soon find itself pressured by law enforcement officials in other countries, many of which may not share the United States’ liberal values.
An Apple win would also be of global consequence. It would embolden Apple to strengthen its encryption and software update systems so that it would be nearly impossible for it to comply with similar orders from other governments. This would allow Apple to preempt demands from officials worldwide, but at the expense of making it harder for Apple to comply with legitimate law enforcement requests—not to mention making it harder for Apple to help its own customers when they forget their passwords and lose access to their data.
Apple and the FBI are aware that their domestic fight may have serious international repercussions.