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tv   The Communicators  CSPAN  February 29, 2016 8:01pm-8:35pm EST

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technology and vice president for policy. we we also have a working reporter joining our roundtable today. mr. calibri's let's begin with you. is this issue we are currently discussing about the iphone and terrorism, is that a classic case of security versus privacy? >> actually it's a more of a case of security versus dashmac's early apple is concerned a we are all concerned about the privacy on the device. we we are also very much worried that building any tool that allows you to break the security on a devices really a privacy harm, one that is going to come back and bite apple users around the world. >> the same question to. >> we see it fundamentally is a challenge to that proper balance. that is because there is a tool in play and the tool is a device that was intentionally designed to be impenetrable. as a result, we believe it threatens the way that our
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search and seizure laws were designed to operate. where reasonable search under a lawful warrant can obtain access to evidence. we do view it as a real threat. it's the balance of privacy and security sits on it. >> tim cook and his open letter writes about this issue, the government suggests this tool could only be used once, on one phone. but that is simply not true, once once created the technique could be used over and over again on any number of devices in the physical world it would be the equivalent of a master key, capable of opening hundreds of millions of locks. >> i think there is a lot of hyperbole and mr. cook's. the existence for example, we do like that analogy because the truth is when you look at the physical world, all sorts of private information exists in the physical world. medical records, business records, where those records are
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stored law-enforcement can access that evidence. there are keys to those physical doors and safe-deposit boxes. also private companies are required to comply with warrants or access even a mock physical devices. in this instance, the fbi is asking with the magistrate's order apple to simply unlock their own device. these are technical means that they have admitted that they have at their disposal are ready. >> if i could push back on that, this is different, were not asking them to unlock a device, a device, they do not have a key in their possession. what is being asked of them is that they build code to break their device. in other words that they actively create a way they can access their device and make it less secure. that is different. a warrant entitles you to search a place
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that does not entitle someone to get something. it it entitles you to access if access is possible. that is different than saying, oh i am actually going to make you build a vulnerability that could be reproduced or asked for by china or illicitly hacked by a hacker. >> on that point, one of the things the doj is saying is this is not a broader attempt to break encryption. it is -- this auto delete on the pascoe. this is a more narrowly tailored request. so how do you push back when you say this is just one time thing for one phone, we are not undermining encryption. this is just about getting access and apple can keep the custody of the code they write. >> it is true we are not breaking encryption by doing this but we are breaking the security feature of the phone. i
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i think the policy debate has gotten broader than encryption versus non- encryption. we are 12 cases outstanding and the reality is if we set this president now we are going to be setting a precedent where i can get your help, whether you want to give it to me or not, to turn your device into something that can be accessed by the government or a listening device, i think we don't want a precedent where the government is able to force people to turn the devices we rely on into spies on us. >> i think that is a significant overstatement of what the risk is here. what we are describing here is the normal operation of the fourth amendment for hundreds of years. which is, even, even the most private areas, the most private locations, can be accessed without warrants. we are not talking about mass
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surveillance. were not talking about the government turning devices into listening devices. were talking about court supervised warrants and the elite access warrants. what is the alternative? these devices have been intentionally designed to be impenetrable by the normal legal process. that is not the way her system is designed to operate. that is is a choice apple and these companies have made. largely business reasons. there is no question, he is correct, there is is both an individual instance we're dealing with, with a phone with a san bernadino terrace, there is a larger question whether these companies should be able to mass-market technology that is intentionally designed to frustrate the legal process. >> to be clear, it's not intentionally to frustrate the law-enforcement. it's intentionally intentionally designed to be safe and secure for users. your phone is the most personal information about you.
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it's all contained in their weather at your bank access, pin numbers, personal personal information about you, all your e-mails, they are designing it to be safe. to be impenetrable not from law-enforcement but from everyone so that we say stay secure in our digital world. >> is this different than looking at someone's e-mails going to jordan, say? >> that indicates a different set of laws perhaps. i do think it's a different angle on the policy debate. one that is a valuable policy debate. i think it's important to note that these companies were, and did work with police for years. to say this is not intentionally designed to frustrate law-enforcement is misleading. part of the announcement and the rollout of this technology was the declaration that they would no longer work with law
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enforcement. this is the experience our agents have in the field were even outreach to these entities to participate in discussions on these topics have been met with the claim that apple was met with silence and google was met with the claimed they would only respond to legal process. we are at this location because we were forced to be here by these companies business decision. >> or talk about legal process though, is there any concern that the statute of law the government is relying too in this case goes back to our founding that is sent centuries old and the legal rationale that they're currently using using in this day and age. >> i don't think so. the all writs act speak -- it's been applied to modernize technology many times over the years. it it is not the first time it's been used with technology that did not exist at the time of the was enacted.
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it's been applied to security videos, credit card records, none of those things existed in the 18th century. >> it is a pretty wide ranging change now. while i agree clearly we have applied the act in the past, this is really make no mistake a policy dispute. if we decide to allow accessed of this type, a magistrate court would essentially be saying there is little or no argument to keep china from doing this exact same thing. there is little or no discussion of who else might be able to access this or the security implication of creating a backdoor that may be misused by hackers. this goes far beyond what a magistrate can honestly grapple with in the court and course of interpreting the act to a
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seachange around all of our privacy and security of our devices. >> what exactly is the all writs act? >> it's a 1789 statute that essentially says you must give assistance to law-enforcement when they come to you with a warrant and producing information on that warrants. that is a little bit different. what what we have here is not just assistance, not the landlord opens the door and uses his key. the landlord drove a whole or worse yet, the safe company is required to put a backdoor lock on their safe that law enforcement can use to open. so we are taking a substantial step beyond assisting a warrant and essentially rebuilding security and access control. >> but we do have to ask the question what the alternative is. we can debate. there are a variety of mechanisms that exist, there are split key options, backdoor master key,
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whatever you choose to characterize. there are there are a range of options. however, right now none of those options have been used in what is true that these devices are locked to law-enforcement, apple is refusing to comply with this and other warrants. as a result those phones act as active safe havens for people who want to conduct criminal activity. >> how valuable is this phone? it's a county owned phone, the personal phones of him and his wife, the other shooter they destroyed them. they drop some of the electronics and the like. they did go to great lakes links to cover their tracks elsewhere. this is a county owned phone to do you think it's that important to investigators? >> i believe that's. >> i believe that's why we have a for the manna process. we don't force people to answer that question before you see the evidence. if you probable cause and obtain a lawful warrant you look for the evidence then. we don't know what's on that phone. pointed to that lack of
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knowledge as evidence that we should not see what is on the phone turns the warren system on its head. >> i think it's worth acknowledging while it is fine to say we should have this debate, the reality is there's vastly more information available to the fbi now than there was 20 years ago. we are communicating in text, were sending hundreds of thousands of e-mails per day, all of this information is out there and much is accessible, not on the phone but on the cloud and other devices. when we say we need information to build a criminal case, location information is available routinely. the reality is reality is we have a ton of information, what were saying is, in in a very narrow case, when other security interests are at stake, we may not have universal access to all information because we are potentially harming the security of every one who owns a phone. >> do you have a problem with
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mr. farouq's cloud information be an access? >> i think there is an interesting legal question about what standard should be asked. right now the legal standard for accessing information the cow content is not a warrant. the law that deals with that is very out of date. there's a a bill before congress right now that would update that. it's being held up by civil agencies and law-enforcement interests. i think we can have a question about what the right standard is. accessible within warrant, no. >> i'm grad you brought that up because we do agree, as it is the fbi already executes warrants for all of that content even though it is not required under the electronic communication privacy act. the fbi uses once for all content. we do know all aspects pass that like the law that chris mentioned provides a very useful
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tool to have this discussion because if you don't think the all writs act as the proper tool, if people have concerns about the fact that there are broader ways to access this information, so so creating this tool for even cyber criminals which is one tool in a world of accessible information, we think that debate should be joined by congress and that should provide ample around that. >> in your expertise do you believe investigators made a mistake in telling the san bernadino county to reset the password in the phone that precluded another attempt at backing up that data on the cloud that would've been a made? >> i don't understand exactly way apple backs up their data, i
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do know there is a factual dispute between the fbi and apple about how that exactly played out. it is a separate question question from the one that is presented here which is, should apple comply with that magistrate's order not. >> i think there's no question they made a mistake. i think also to be fair every investigation will not be conducted perfectly. putting that aside, i think the reality is that if we have a device that is likely not going to contain useful information, that probably could have been accessed without this mistake, is this really the hill that we want to create a huge new precedents allowing law-enforcement to essentially force the building of weaknesses and backdoors into devices? i think not. i think this is a discussion that should go to congress and should continue on
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past this court proceeding. >> those issues that you raise a key point came out on monday, it was a poll only one pole, this poll said 51% of americans sided with the fbi, 38% sided with apple. is apple losing this in the public court of opinion? >> i don't think so. perhaps i'm an optimist but the fact that we are talking about a high profile terrorism investigation, and the fact that 40% of people understand their privacy is at stake in the phone is so sensitive that even in this most extreme sensitive case we still don't want to see that phone access. i think that's a big deal. >> i would contrast that. i think that number speaks to something different, if you take into account the massive amount
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of resources these very large companies have put into public relations, lobbying, outside groups that are serving as advocates that on these issues come in the face of all of that, that 51% of the people, many of whom are loyal apple customers including myself, still have questions about how these companies marketing choices. i think think that number is very persuasive. >> has apple ever on microphones before for criminal case? >> sure, although i think we both agree that the newer operating system from the presents a different technological issue. they have cooperated with law-enforcement many times in the past with their technology. >> to my mind that only underscores the seriousness of how they view this incursion into the their device.
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there are billions of people buying iphones, they are in the business of selling phones to lots of people, if they thought there is the risk of alienating their customers, i think smart corporate money and a lot of places would have said you know it, knock went going to pick this fight. i think they recognize this is a sea change, this is turning the device, companies turning devices on their users. if we go down that road no one is going to trust these devices and that's going to have a bigger impact on apple than anything. >> i continue to think there's a bigger question we have here about whether we turnover our constitutional search and seizure process to large corporate interests, which is exactly, these are these are choices that are made for business decisions that are now being told overrides the procedures that we have used to strike the balance between privacy and security for centuries. >> as you mentioned earlier
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there has been a legislative impasse on encryption for years now. there's been proposal thought about floated but really haven't gotten any momentum. can congress ultimately deal with this and how do you see that going forward? >> there's a lot of ways it can go forward. the reality is that congress first needs to grapple with whether we are better off was strong, secure secure systems. that is a legitimate question to ask. if we have a device that is secure, that does not have a backdoor, that is protecting the interests of human rights advocates and china, that's protecting my information against a hacker, that may have a greater benefit than the marginal effect on law-enforcement. that is a legitimate position to be inches i think think we should not foreclose that discussion anyway. >> we agree, but this discussion
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should have happened before they put millions of devices on the market. implications for law enforcement are already being felt. our local and state law-enforcement report multiple investigation on things ranging from low-level crime to child pornography, to abduction, that are being frustrated by this. it will only increase. we can have this discussion but there needs to be action and there should have been in responsibility from these companies on the front ends. certainly certainly law-enforcement learned about these implications at the beginning, somehow convincing people there information is secure as a result of this device is misleading. >> a lot of these lawmakers support apple and strong encryption and are saying we need to deal with this but they have not dealt with it because -- >> i think a lot of lawmakers have been hesitant to get involved because it has a lot of technical complications. sometimes sometimes it takes a
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moment to clarify a topic. there's no question be faced with looking at a cell phone that was used by terrorist, and knowing there is information and we don't know what there is an we can't get it because of choices made by these companies, i think that has clarified the issue for a lot of people. >> if congress doesn't act of this wind up in the supreme court, what does that look like? >> those maybe separate questions. this litigation will proceed regardless of the outcome of the district court level. also there should be a policy discussion that occurs. >> i think were really at the beginning of exploring the legal issues. we haven't talked about the free speech implications about apple knowing that devices care when they know it's not. forcing the company to say something to their company when it's not,
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this update i'm sending to the device is one that you can trust when they know that's not the case. i think the idea of the government pre-approving technological chicle changes is terrifying. we should worry about that. we should worry about saying i can't roll out strong, powerful, safe devices until i have gotten sign-up from the fbi. nobody wants that. >> i think it's an interesting concept. they're concerned about human right has not seemed to start when it came to actually building those phones in those markets. the idea that these companies are acting purely out of civil liberty desires, i don't think it's true. >> back to tim cook's letter, we can find no precedent friend american company to be forced to expose its customers to a greater risk of attack. for years cryptology is in national security experts have been warning against weakening
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encryption. >> i don't think that's accurate. there is a range of precedent of a quote requiring private companies to access private information. the credit card companies under the all writs act could've made the same claim. there's no precedent until that precedent was set requiring those companies to turn over sensitive financial information. if you read what the motion to compel actually requires, the software that is being asked to be used to essentially turn off the booby-trap built into this phone that would destroyed upon ten password uses, that will be held by the company the same way experts use to create that software. i don't think you -- let's look at the technology for a moment. at least as an initial matter, yes i'm going to send i'm probably end up happening i will
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send the device itself to apple. apple would then create software which would trick this device into changing its operating system. say you can trust us download couple work in the certified that to your device. that's fine that it's held in apple's hand hand today. the reality is that that precedent set, i will have a precedent that updates may be falsified. nephew took you took five security experts run this room they would tell you one of the single greatest innovations, one of the most important changes in cyber security is the universal update. we are auto updating devices so we know that when there are security vulnerabilities, they get patched. if we break that process, if we say don't update your devices because you don't know what's in there, you can't trust the company to tell you that this is actually secure update, it may be something else or worse, this update process could be
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subverted in some way by a hacker. we have broken huge improvements to cyber security and rollback a substantial amount. that's something we should worry about independently. that's why this is something that congress should be considering, not a magistrate judge in california. >> seems like every week we have a new story about how those in washington are not getting along. this seems to be borne out of 2013 that affected the relationship, is this the new normal? are we having this debate now because of those revelations, why apple and other companies have decided to go this far on the side of digital privacy? >> i can't speak to their motivation in terms of snowden. they suffered unfair reputational loss based on legal harms they cannot do anything about. right now, not to get to a field there's something called the
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privacy shield which is a framework which allows information to flow from the eu to the europe, to the united states. that agreement was essentially wiped away by european court because of their concerned of domestic surveillance and require companies to comply with that surveillance. that through thousands of companies into disarray. they clearly felt harmed. there's really nothing they can do, they are complying with legal orders. it's hard to look at them and turn around and say, you must continue to comply with his legal orders, even though though it is likely to cause even more financial harm, at minimum the fbi and other law-enforcement need to recognize what they're doing is causing financial hardship to companies as well as harming devices. >> i'm sure we feel bad that the marketing choice these companies which are very successful companies having that we are
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proposing a solution that in order to solve very dangerous crimes may not be fully consistent with their and goals. the truth is nobody's more vulnerable to cybercrime than those with the fbi. not only are they crimes that they're trying to solve every single day, as as the director often says cybercrime now is crying. it perpetrates all types of crime. our members, almost everyone of them was a victim of the recent, very large hack into the office of personnel management. people are very sensitive to these issues but they also know that in the midst of this they know that our constitutional system should set the rules of how you access information, not marketing. >> i'm really glad you mentioned the omb hack. for folks not familiar with it, about 24,000,000 people, federal employees had their most
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personal information held by the federal government hacked. this is their personal background checks. their mental health history, whether they have a drinking problem, everything in their background check. i can't think of anything more secure than that and if we cannot keep that secure, if anybody really believe we are going to be able to keep whatever technique we develop as a this process, secure. >> that's part of the point. that information is all hack about. all these companies have done, the one thing that has not been a big a big source of threat is the physical phone. >> because they built it secure. >> until this recent operating system which we did not do problems before. what you are creating is a tool for those very hackers that will make our agents, their jobs substantially more difficult to investigate and prosecute those kind of people. your hand in that tool for prophet to criminals around the world.
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>> how does the center for democracy and technology want to see this play out? >> we want to make sure we protect people's privacy. at the end of the day we do not want to see apple forced to build malware. i don't want to see apple doing a cyber criminals job for them. forcing them to build a product that is going to hack their device. to me that is a terrible outcome that is likely to make all of us less safe. >> we would like to see apple stop selling malware in the form of initial phones that are being used by those very people and being marketed based upon the false promise of security, because their information is already vulnerable but really is a tool that frustrates and is inconsistent with our constitutional system of search and seizure. >> jeff and chris, and dustin
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thank you. >> thank you. >> c-span, created by america's cable companies 35 years ago and brought to you as a public service by your local cable and satellite provider. >> coming up on c-span two, the white house medal of honor ceremony for u.s. navy navy seal senior chief, edward byers. senate minority leader and charles grassley debate the supreme court vacancy. later, washington post the executive editor marty baron on his boston globe on the catholic church scandal.
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c-span's washington journal, live every day with news and policy issues that impact you. coming up tomorrow morning, david rucker from the washington examiner will talk about super tuesday voting, the states of all, the candidates and what the results could mean for the election. an irs taxpayer advocate will take take your calls and questions on tax topics. "washington journal", five tomorrow morning, joined the discussion. >> so many of my former books were horizontal studies. many con trees across the whole region, then said the earth covering a minimum of six countries. here here i look at one country in depth. i use it to explore great themes. i think great things. the holocaust, the cold war, the challenge of vladimir putin,
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romania, so to study romania is to study the legacy of empires. >> sunday night on q&a. robert, author of in europe's shadow talks about the history of the volken states and romania struggle to gain democracy since the fall of communism. >> romania was a corrupt country. it had a weak institutions, everything was based on a bribe and doubledealing. what this shows is this is nothing new. what is happening is the romania population has grown up and become far more sophisticated. it is demanding clean government. it. it is its number one demand. >> sunday night and eight eastern on q&a.
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>> next, president obama or as the medal of honor to u.s. navy field, edward byers at a white house ceremony. ceremony. senior chief byers is being honored by his actions in rescuing hostage in afghanistan in 2012. he is the sixth navy seals receive this honor. this is 20 minutes. >> heavenly father be with us today as we gather to see senior chief edward byers receive our country's highest highest military honor from the hands of the president. we offer you are thanks for the integrity, generosity of spirit, and valor that mark senior chief byers life in service to our country. we offer you are thanks for the rescue of doctor joseph. we thank you for restoring both of them safely to the embrace of those who love them.
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at the same time our hearts go on to petty officer nicholas check and his family and friends. man peripheral america always remember and honor his service and sacrifice, amen. >> please be seated. good morning everyone and welcome to the white house. the east those, the creed for every navy seal said this, i do not advertise the nature of my work nor seek recognition for my actions. that is another way of saying that standing here today in front of the entire nation is not senior chief ed buyers idea of a good time. [laughter] like so many of our special operators and is defined by a deep sense

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