Apple and other tech firms’ communications services, which are protected with robust encryption, were targeted by a legal blog on Thursday. The blog claims that such services might be used by a suspected terrorist, and thus, tech companies could potentially be held liable for providing material support.
Terrorists may use Apple’s encrypted services
In a blog on end-to-end encryption and its impact on national security, Lawfare editor-in-chief Benjamin Wittes and co-author Zoe Bedell talked of a hypothetical scenario in which Apple is called to decrypt data needed by law enforcement agencies. Since Apple devices, especially the ones running on iOS 8, can’t be decrypted, a terrorist might use the company’s messaging service to keep a plan protected from security agencies. And the results could be devastating.
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In a worst-case scenario, the authors say an American operative is selected by ISIS using Twitter, and then they shift their communication to Apple’s encrypted services. The authors say the person might be on the FBI’s radar, but once they move to iOS, their communications will “go dark.”
Can Apple be held liable?
Lawfare explains that since Apple had been warned of the potential threats to national security including the danger of loss of life from its encrypted services, it can be found to have provided material support to terrorists. In such a scenario, the authors suggest that Apple could be held liable under §2333 for violating section 18 USC §2339A. They believe the company’s services could be used to “provide material support or resources … knowing or intending that they are to be used in preparation for, or in carrying out” a terrorist attack or other listed criminal activity.
The authors then detail court precedents related to this issue, noting that in some of the cases, Apple may be found guilty of providing material support. Apart from Apple, tech firms such as Google and some Android device makers offer similar security standards, so they could also face similar charges.
For its part, Apple has long been a supporter of data privacy, boasting iOS encryption features and making it hard for security agencies to get data unless a warrant is served. This stance from Apple has many times, landed it in a battle with security agencies which have been advocating for open access to data.
This hypothetical scenario from Lawfare could make the battle between ongoing government surveillance and consumer protection “uglier,” noted a report from Intercept.