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ACLU lawyer Ben Wizner is best known for representing Edward Snowden. In a recent discussion with ArsTechnica, Wizner discussed the current state of the government surveillance.
Wizner has been doing his part to educate the public about the state of state surveillance. From his vantage point, the struggle between surveillance and privacy is really a grand struggle between government authoritarianism and democracy.
Wizner doesn't seem at all surprised by recent poll results that say that Apply should turn over the means to access the San Bernadino shooter's iPhone -- if it exists. It appears to be that he thinks the general public is too easily willing to trade away their privacy interests because they see the issue too narrowly as a "terrorism" issue, when it's really about dueling security interests. "So long as the focus is on a terrorism investigation in the US, I think it's going to be hard to get high levels of support for [Apple's resistance]," he said.
From Apple's standpoint, their interests are in protecting their trade secrets and business. If they are forced to create a backdoor, that will place the means of infiltrating the company in the hands of an entity already vulnerable to foreign attack from China -- the US Government. For Apple, talk of privacy is simply a convenient cover.
From the FBI's viewpoint, it could probably crack Farook's phone, but it could land a major victory in obtaining court authorization (as they recently did) to create the means to open all phones. Apple has resisted this and is requesting that the FBI seek the help of the NSA first, pursuant to the perceived meaning of the All Writs Act. If the NSA can crack the shooter's phone, then Apple will not need to comply with a general order to create a skeleton key to all phones. The dispute has very real consequences and might even lead to precedent.
Wizner predicts that history will eventually look at Snowden favorably for his actions and that changes in current attitudes already portend this shift. He pointed out that even Eric Holder -- the former Attorney General who acted as the face of the anti-Snowden movement -- conceded that Snowden's actions motivated legislative reform on issues of privacy and security, and that the Justice Dept. should strike a deal. European sentiment has already shifted away from a "must-punish" stance. Snowden seems to be winning the PR battle.
There's worry that technology that all of us have come to depend on will inevitably be the very same technology that government and law enforcement will use to pry deeper into individual's lives -- all in the name of national security or prevention of the next terrorist attack.
Wizner worries about fickle public sentiment that might allows for the same kind of anti-privacy rules like the PATRIOT Act, which allowed for greater department cooperation in the wake of 9/11. But he notes that one of the biggest wins to come out of the Snowden revelations is an increase of end-to-end encryption communications, geographically ambiguous networks that ensure that participants can communicate and interact with each other without government molestation.
This sort of development is consistent with Wizner's view of the Bill of Rights: the document was intended to make the government's job more difficult to pry into your life, not easier.
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