The CEO of Google Sundar Pichai has come out in support of Apple CEO Tim Cook’s opposition to providing the U.S. Federal Bureau of Investigation (FBI) with a software that would help authorities unlock the iPhone belonging to one of the persons that killed 14 people in the San Bernardino, Calif shootings last December.

In a first-of-its-kind ruling, U.S. Judge Sheri Pym issued an order instructing Apple to assist law enforcement authorities to decrypt the iPhone belonging to Syed Farook. Farook and his wife Tashfeen Malik killed 14 of Farook’s co-workers on December 2 during a holiday luncheon. The massacre has been called the deadliest terrorist attack on U.S. soil since the 2001 attack on the World Trade Centre and the Pentagon.

Pym’s ruling has rekindled a technology policy debate that pits digital privacy against national security. It is a debate that is not limited south of the border but also very relevant to Canadians.

In a series of tweets yesterday, Pichai said he is aware of the challenges faced by law enforcement authorities battling crime and terrorism.

 

“We build secure products to keep your information safe and we give law enforcement access to data based on valid legal orders,” Pichai said. “But that’s wholly different from wholly different than requiring companies to enable hacking of customer devices & data. Could be a troubling precedent.”

The FBI is in a bind. They have Farook’s phone but they cannot access the data inside it because the device has a password lock. The phone has a feature that automatically erases the data inside when a certain number of failed attempts to unlock the device has been reached.

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That is why the FBI wants Apple to work on a software that will help them unlock the phone. However, Cook contends that Apple itself cannot unlock the iPhone because it was designed that way as a security measure. Building a software to unlock the device would, in essence, be creating a “backdoor.”

Could something like this happen in Canada?

“Theoretically” yes, according to a prominent Canadian privacy expert.

“This is a court order – there are no statutory powers to compel a device manufacturer to devise these kinds of security hacks.  However, police in Canada could theoretically ask a court to order a manufacturer to provide such a hack,” said David Fewer, director of the  Samuelson-Glushko Canadian Internet Policy & Public Interest Clinic (CIPPIC).

So far there have been no reports of Canadian authorities calling on Canadian companies to create a backdoor mechanism or software for them in order to gain access to customer data. Police, however, typically ask Internet service providers and mobile service providers to release some data in their hands that may aid in investigations.

Recently, the Supreme Court of Ontario ruled that the Peel Region’s Police actions in 2014 compelling Rogers Communications and Telus Corp. turn over records of anyone who used their phone in the vicinity of certain cellular towers during the robbery, violated the Charter Rights on privacy.

Creating a backdoor is different, though. Once a technique to hack into a device is created, it can be used over and over again on similar devices.

Data in the hands of cellular service providers, for example, is usually unencrypted data in the possession of the provider, according to Fewer.

“This is data on a device in the hands of a person, not data in the hands of a service provider.  The FBI has the phone – it just doesn’t have a key to decrypt the phone.  The FBI wants Apple to develop a skeleton key that will work with all Apple devices that feature this particular security set-up,” he said.

While the tool the FBI wants is only for an iPhone5 and may not work in more recent versions of the device, “we are still talking of millions od devices,” he added.”

In an open letter, Cook said Apple mourns the deaths of the people in the San Bernardino attack and also wants justice for those affected by it but the government is asking Apple to do something “we simply do not have, and something we consider dangerous to create.”

“Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on the iPhone recovered during the investigation,” said Cook. “In the wrong hands, this software – which does not exist today – would have the potential to unlock any iPhone in someone’s physical possession.”

He said this would in effect make it easier to unlock an iPhone by “brute force.”

The Apple CEO said the FBI’s demands constitutes an “unprecedented” use of the All Writs Act of 1789 “to justify expansion of its authority.”

“The implications of the government’s demands are chilling,” said Cook. “If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data.”

The issue goes far beyond the investigation of a heinous crime, according to Fewer who also said Apple is “absolutely right” in its position.

” The question is much, much more important than that:  is this the kind of police power that is compatible with a free democracy? , according to Fewer, Do the risks to liberty and security – through use, abuse and misuse of these tools by law enforcement and by criminals  – outweigh any marginal benefit to crime investigation?  This police request asks the court to essentially redefine  the relationship between citizens and their governments at a time when the technologies we use to communicate are evolving rapidly.  This is a complicated and momentous request.”

Fewer thinks the issue is being closely watched by Canadian authorities.

“Canadian police authorities share a desire for greater investigatory powers and dislike security and encryption technologies that have beneficial applications,” he said.

Should the US court prevail “globally, we’d see all technologies become less secure because the legal systems in which they reside would no longer favour such security,” he added.

While the court order only applies to US companies and benefits US law enforcement, there is the possibility of such an order “migrating to Canadian courts, or worse, the technology itself finding its way into the hands of Canadian police through information sharing arrangements and being used for device searches and data seizures in the absence of court oversight,” Fewer said.