FBI vs. Apple: Holy War or Just Another Whinge?

Tim Cook attends the 2015 Robert F. Kennedy Human Rights Ripple of Hope Awards at the New York Hilton Midtown on Tuesday, Dec
Tim Cook attends the 2015 Robert F. Kennedy Human Rights Ripple of Hope Awards at the New York Hilton Midtown on Tuesday, Dec. 8, 2015, in New York. (Photo by Andy Kropa/Invision/AP)

The Federal Bureau of Investigation has done a masterful job in its campaign against Apple and, by extension, against the tech world.

The Bureau's request to unlock San Bernardino shooter Syed Farook's work cell phone (as opposed to the personal phone he smashed), has produced a classic false choice for the public -- protect yourself from terrorists or protect your privacy. God ahead and choose. The Bureau is daring the public and lawmakers to choose. Make my day, as it were.

Unfortunately, and the tech industry, are playing on the Bureau's chosen ground.

They shouldn't.

This dispute is not about defending the public from the latest diabolical technologies in the face of international or homegrown terrorism.

No, the issue has to be seen not as a debate over phones, or even about encryption. It only makes sense if you see it as part of a long trend of law enforcement's struggle to keep up with technology.

This isn't a holy war. It's just another whinge on top of decades of other whinges and whines. And guess who usually wins in the end.

In The Beginning

Author Bryan Burrough, in his book about America's depression-era crime wave, sets the stage for his story in a way that would be familiar to those looking at today's debate. "The spread of technology was the result of technology outstripping the legal system," Burrough wrote, as if describing the FBI's angst of today.

But he wasn't. He was describing a situation almost 100 years ago. While part of the lawmen's anxieties came from machine guns developed after World War I, "the greatest impetus [of a new string of bank robberies] was the automobile, especially the new models with reliable, powerful, V-8 engines. While the county sheriff was still hand-cranking his old Model A, a modern yegg could speed away untouched."

Burrough quoted one crime writer from 1924 as saying that, "Seventy-five percent of all crimes are perpetrated with the aid of the automobile." The problem was that "automobiles and good roads have done much to increase certain types of banditry," the writer observed.

Fast cars, Better roads. Those were the problems facing law enforcement in the early part of the last century. Of course, the advantages didn't law long. Cops got their own guns and cars. And Federal legislation eliminated the bandits' advantage of crossing state lines to avoid capture by the local sheriff.

The issue of law enforcement complaints about being behind the curve is as old as technology - any technology.

The Telephone Evolution

Let's move a little closer to today's problem. Around the same time as cars and roads were making things easier for crooks, law enforcement got some help of their own from another relatively new, quickly spreading, technology -- the telephone.

Starting about 100 years ago, good guys, and bad guys, figured out that it wasn't hard to listen in to other people's conversations. All you needed was a pair of alligator clips hooked up to the phone wires leading to a phone, a speaker or a tape recorder. Laws tried to limit the use of wiretaps, but cops kept doing it anyway.

That technology lasted for a good 60 years or so until a new threat came across the transom, or should we say, over the air. Cell phones were introduced in 1983, and really took off a few years later when the phones got smaller and the networks got bigger.

Law enforcement screamed at the injustice of trying to tap phones without wires. In 1994, Yale Computer Science Professor David Gelertner, wrote in the Times that "in the age of high technology, the wiretap is a dead duck."

Gelertner, who was no foe of wiretapping in the cause of justice, wrote: "In the old days, all conversations associated with a given phone number were funneled through one physical pathway, and by spying on that pathway you could hear it all. Nowadays, cellular phones and call forwarding make it much harder to find the right spot and to attach a tap."

And Gelertner was on top of an even newer technology -- fiber optic transmission: "New techniques coming into use will make it harder still: when many conversations are squished together and sent barreling over a high-capacity glass fiber, it's hard for wiretappers to extract the one conversation they are after from the resulting mush."

That's right. The cops couldn't listen in to conversations when the conversations weren't voices, but instead were converted into data. How would they ever get the drop on bad guys?

Remember, in 1994, there was no ISIS, no Al Qaeda, no international terrorism -- the justifications for today's FBI's push to decrypt the iPhone.

Also in the early 90s, law enforcement found itself behind the curve of another type of road -- the Information Superhighway. Those were the nascent days of online communications before the Internet took over and made that highway obsolete.

The Computer Age Dawns

And so, in the early days of the Clinton Administration, came the first real tech vs. law enforcement battle that looks like what we have today -- the Clipper Chip. The idea was simple. The way to figure out what the data meant was to break the codes.

The Clipper Chip was the little chip that would go into everyone's computers and allow the government to see whatever it wanted. People could use their own encryption, but the government would have the key.

It took three years for the Clipper Chip to be buried, but in the meantime, Congress passed a bill directing telephone companies to make certain the FBI could listen in to whatever it wanted, technologically speaking, of course.

And law enforcement (and the national security apparatus) figured it out each time. With a compliant phone company, the National Security Agency collected data on millions of people by running the equivalent of wiretaps through the switches the directed calls.

Each time there is a new technology, law enforcement complains, but somehow figures it out. It figured out how to listen in to cellphones, and then asked to be able to capture location information as well, and then for "roving wiretaps" to track everyone who was called by the suspect.

When the current generation of Internet addresses was starting to be exhausted, the FBI was worried that, as one writer put it in 2012, that "an explosion of new Internet numeric addresses scheduled to begin next week may hinder its ability to conduct electronic investigations."

In 2014, current FBI director James Comey was on Capitol Hill complaining about encrypted cellphone calls. Ironically, he was talking about the latest Apple iPhone operating system. "We aren't seeking a back-door approach," he said, foreshadowing today's debate which is a backdoor approach to having access to everyone's cell phones.

And so we come to today, with the FBI yet again on Capitol Hill, again in a pitched battle, battling the forces of evil with seemingly inadequate technical responses such that a level playing field can be gained by giving up our privacy.

Only by giving the FBI the ability to force companies to break encryption on any device and to give the Bureau access to the data inside can we be protected.

If history tells us anything, it's that a) we've seen this act before, b) that law enforcement will by hook or crook get the capabilities it needs and c) it will come running to Congress for relief the next time a new technology crops up.

It's an old story, not a new fight for civilization. Let's treat it that way. Or think of it as the late Gilda Radner did: It's always something.