Apple is not being asked to backdoor iPhones: Australian Children's eSafety Commissioner

Commissioner Alastair MacGibbon has said that Apple is not being asked by US courts to create a wholesale permanent vulnerability in its products, and is therefore not a backdoor.
Written by Chris Duckett, Contributor

Australian Children's eSafety Commissioner Alastair MacGibbon has dismissed concerns that Apple will have to backdoor one of its own products to comply with a US Federal Court order that demanded the phone maker help the FBI access data on an iPhone used by one of the San Bernardino shooters.

Speaking to ZDNet, MacGibbon said the court request was reasonable.

"What we are talking about here is a criminal court in the United States making a judgment to compel Apple to do certain things," he said. "The thing that irks me is the use of the word 'backdoor' -- because it implies things that this court order does not.

"It is not compelling Apple to hand over its cryptokeys, and it is definitely not compelling Apple to build a structural fault in every single device ... this is a court order compelling the company to assist the FBI in a single serious criminal investigation.

"This is not the backdoor that people are talking about ... they are not going to be building a flaw into the products that we know and love."

MacGibbon was appointed to the role of eSafety Commissioner in March 2015, after spending 15 years in the Australian Federal Police, including working as the director of the Australian High Tech Crime Centre. He also worked previously for Dimension Data, eBay, and the University of Canberra.

According to MacGibbon, what the US court has demanded of Apple is not extraordinary.

"That's no different to police using forensic technologies to break encryption and get access to devices today, which they do; it's just clearly, they are finding it more difficult with this model of phone," he said. "It requires the government to have seized the item, it requires them to be in physical possession of the item, it requires a court to order the company to help them. Those are all checks and balances that mean I'll sleep very comfortably at night, assuming the government doesn't have its hands on my phone.

"For the average person on the street, they can sleep very soundly at night knowing their device is not being tampered with. The fact that the government is going to this extent to try to gain access should in and of itself give people some comfort that the US government, or our government or others, are not doing this on a wholesale basis."

The commissioner said the US authorities had very good reasons to be pursing the matter, and that in the "real world", law enforcement does need access to devices from time to time, as long as there is no extrajudicial pressure applied.

"Clearly, I'm a pro law-enforcement type of guy, but not blindly so. I don't agree with building in backdoors, and governments forcing companies to put in backdoors, because I do think it would expose consumers who actually have to trust those devices.

"Having lived and worked in America as an Australian government official, I can say that the Australian and US judicial systems will tread very carefully on these matters, as they should, as will their parliaments, because they will try to balance that concept of privacy and the integrity of the overall marketplace with what they would consider to be extreme edge cases."

MacGibbon said the issue surrounding Apple is not dissimilar to the metadata-retention scheme recently introduced in Australia, and that "sensible discussions" are needed.

"It's fine if we disagree; I actually relish the thought we disagree. What I don't like is a mindset that says there is absolutely no circumstance under which governments should ever gain access to anyone's communications data, or data that lays at rest on the device.

"Because frankly, that's just not the real world."

Earlier today, Australian Attorney-General George Brandis told the ABC that Apple should comply with the court order.

"We would expect, as in Australia, that all orders of courts should be obeyed by any party which is the subject of a lawful order by a court," he said.

Brandis said that if data is encrypted in a way that law-enforcement agencies are not able to decrypt, then it presents a problem.

In November last year, Brandis said that Australian attitudes to privacy will need to be adjusted, citing attacks by ISIS as his rationale.

"There will be occasions in which we will have to accept greater limitations, greater impediments to personal privacy," he said.

Under Brandis' tenure as attorney-general, the Australian government has passed legislation that mandates the collection and storage of call records, assigned IP addresses, location information, billing information, and other customer data for two years for warrantless access by law enforcement.

The attorney-general's comments reflect similar thoughts expressed by Republican presidential nominee frontrunner Donald Trump, who called for "common sense" to prevail.

"I agree 100 percent with the courts," Trump said, according to CNN. "But to think that Apple won't allow us to get into her cellphone, who do they think they are? No, we have to open it up."

On the other side of the ledger, the American Civil Liberties Union (ACLU) has thrown its support behind Apple.

"This is an unprecedented, unwise, and unlawful move by the government. The Constitution does not permit the government to force companies to hack into their customers' devices," Alex Abdo, ACLU Speech, Privacy, and Technology Project staff attorney, said.

"Apple is free to offer a phone that stores information securely, and it must remain so if consumers are to retain any control over their private data."

Abdo warned that the court order could set a dangerous precedent.

"If the FBI can force Apple to hack into its customers' devices, then so too can every repressive regime in the rest of the world."

The Electronic Frontier Foundation (EFF) has also backed Apple, saying it would file an amicus brief in support of Cupertino.

"Essentially, the government is asking Apple to create a master key so that it can open a single phone. And once that master key is created, we're certain that our government will ask for it again and again, for other phones, and turn this power against any software or device that has the audacity to offer strong security," the EFF said.

"The US government wants us to trust that it won't misuse this power. But we can all imagine the myriad ways this new authority could be abused. Even if you trust the US government, once this master key is created, governments around the world will surely demand that Apple undermine the security of their citizens as well."

Earlier in the day, WhatsApp CEO Jan Koum joined the chorus of support for Apple.

"Today, our freedom and our liberty is at stake."

Google, in somewhat less emphatic fashion, also weighed in on the issue, warning that compliance with the court order could compromise a user's privacy.

"We know that law-enforcement and intelligence agencies face significant challenges in protecting the public against 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," Google CEO Sundar Pichai said on Twitter.

"But that's wholly different than requiring companies to enable hacking of customer devices and data. Could be a troubling precedent."

Editorial standards