U.S. Sends Mixed Privacy, Encryption Messages:Panel

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By Joyce E. Cutler

Feb. 19 — The U.S. government is giving mixed messages to technology companies—build privacy and security by design in products and services, but leave them open to backdoor access by default—privacy professionals said.

(Click image to enlarge.)

FBI message

The issue took on even more significance coming amid the firestorm over whether the Federal Bureau of Investigation can force Apple Inc. to unlock an iPhone used by one of the shooters in last December’s San Bernardino, Calif., terrorist attack.

“A weakness is a weakness. It can be exploited by anybody,” Demetrios Eleftheriou, Symantec Corp. global privacy director, said regarding backdoor access to smart devices.

A federal judge Feb. 16 ordered Apple to provide the FBI with software to disable the security feature that auto-erases the phone's data after successive, incorrect attempts to enter the pass code .

“It just seems like there’s a bit of an inconsistent message from the government,” Eleftheriou said.

“We have law enforcement on the one end saying you build back doors, they want broken by design,” he said. On the other end are “the regulators saying you have to incorporate security by default, privacy by default in the product,” he said.

“So I’d be interested in hearing a message from both sides saying, hey, is broken by design compatible with privacy by design and security by default?” Eleftheriou asked.

But the debate isn't isolated to U.S. domestic policy, panelists said at a Feb. 18 Bloomberg Law Privacy Outlook event in San Francisco.

The panelists also discussed a wide variety of other topics, including big data analytics, changes to European Union privacy law and the reasonable data security standards released by the California Office of the Attorney General the same day as the Apple order.

What Happens Here Doesn’t Stay Here

The U.S. government needs to consider whether its inconsistent stance on consumer encryption is compatible with the new European Union General Data Protection Regulation requirements for privacy by design and security by default, Eleftheriou said.

Will DeVries, Google Inc. privacy counsel said companies “want the process to be really clear, really defined and based on principles that we can apply globally to our services that actually make sense and keep us all safe.”

The argument against accessing a terrorist’s phone for privacy reasons is a “red herring” when “we’re actually worried about the precedent of saying can you ask a tech company to undermine the security of devices that’s out in the public, not just for the device they’re talking but a security flaw that then can be used on any device,” DeVries said.

The U.S. government often acts as though the requests it wants are only going to be valid for the U.S, he said.

“The fact is every government in the world thinks their own laws are valid and their own needs for access to data is valid. There’s no principled reason for tech companies that operate globally like Google and Apple why a request from another government, the Russian, the Chinese, wouldn’t be just as valid for users in that country or say Turkey or say some other place that doesn’t have civil rights record like the U.S. or Western Europe,” he said.

Dangerous Effects?

Companies can be ordered to assist with law enforcement to get at some data, Chris Jay Hoofnagle adjunct professor at the University of California, Berkley, School of Information & School of Law and member of the advisory board of Bloomberg BNA's Privacy & Data Security Law Report, said.

“Obviously, what makes this situation so dangerous and difficult is that the work the government would like Apple to do could be used prospectively and could be used to erode privacy and security in devices generally,” Hoofnagle said.

The tech industry finally is at this point where their devices are good enough to beat these forensic appliances, “so what happens now is going to be really important for the future of device security,” he said.

Crack in Fourth Amendment

Hoofnagle said he’s seeing a crack in Fourth Amendment applicability—worrying that there may be a split in application between various level of criminals.

“We might come to a world in the U.S. where we basically have different Fourth Amendment standards for the terrorism case where maybe we do feel as though the phone should be unlocked versus other types of crimes that aren’t as serious.”

The panelists also discussed the continuing rise in the use of big data analytics by companies. Google's DeVries said he was hopeful that in the future the benefits of big data analytics will be turned not only to reach corporate goals but to solve social problems.

They also briefly discussed the coming European Union General Data Protection Regulation. Eleftheriou said that although the GDPR is fairly clear on several basic privacy issues and is designed to bring about a much-needed harmonized approach to standards and enforcement, the 28 EU member states will still be able to influence how the regulation is actually implemented.

California's Reasonable Data Security Standard

The panelists considered the data breach report released by California Attorney General Kamala Harris (D).

The report outlines what the state believes is “reasonable security” that companies must employ to avoid possible enforcement actions.

Hoofnagle said the setting of data security standards may be a preface to the Office of the Attorney General being able to take enforcement action against companies that have lax data security and then face a data breach.

Under the guidelines in the report, failing to implement all 20 of the Center for Internet Security’s Critical Security Controls that apply to an organization’s environment constitutes a lack of reasonable security.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at jcutler@bna.com

To contact the editors responsible for this story: Daniel R. Stoller at dstoller@bna.com; Donald G. Aplin at daplin@bna.com

For More Information

An archived video of the panel session is available at http://www.bna.com/privacy-outlook-san-francisco-ondemand.