Apples and Oranges

New York
02.29.16

“Surviving Total Surveillance” at the Whitney Museum of American Art. (Photo: Andrew Kist)


ONE OF THE PERILS of political art is that it stays still as politics, trumpeted by the daily news, marches on. Laura Poitras, the Pulitzer- and Oscar-winning documentary filmmaker whose “9/11 Trilogy” culminated in CITIZENFOUR (2014), a fly-on-the-wall account of Edward Snowden’s disclosure of the National Security Agency’s family jewels, opened her first art exhibition, “Astro Noise,” at the Whitney Museum on February 5.

During “Surviving Total Surveillance,” a sold-out panel discussion held at the museum the day after the opening, Poitras said that she finds the straight news approach to covering the Snowden archive more “alien” to her than artists’ visual responses. She doesn’t like the “prioritization of the new” in journalism, she continued, being more interested in what material can make the biggest impact. This thought was foreshadowed in her gripping “Berlin Journal” from 2012–13, which details Snowden’s initial attempts to contact her and is excerpted in the show catalogue, Astro Noise: A Survival Guide: “There is a danger working with news events—they lose their meaning once public. I need to make sure everything has bigger social and human meaning.”

Since the panel, the US intelligence community has generated some news of its own, news that points up the need for activist work like Poitras’s even as it monopolizes any attention average citizens might have paid to the opening of “Astro Noise.” First, three days after “Surviving Total Surveillance,” Director of National Intelligence James Clapper, he of the under-oath lie that the NSA does not “wittingly” collect data on millions of Americans, announced in congressional testimony that US intelligence agencies “might use” (read: already are using) the nascent “Internet of Things” (e.g., your Web-enabled espresso machine) for surveillance purposes.

This notion, at once chilling and comical, calls to mind Philip K. Dick’s annotation to his 1953 short story “Colony”—“The ultimate in paranoia is not when everyone is against you, but when everything is against you. Instead of ‘My boss is plotting against me,’ it would be ‘My boss’s phone is plotting against me.’ ” Ironically, this is the attitude taken by the FBI in a far bigger story that broke on February 16: The security features of the Apple iPhone 5C have conspired to prevent the agency from brute-force cracking the password of the work-issued phone of Syed Farook, one of the San Bernardino shooters.

Despite the facts that (i) the FBI can already obtain from the wireless carrier (if not the NSA) all of the phone’s metadata regarding Farook’s communications; (ii) Apple has already provided the FBI with the phone’s iCloud backup data up to six weeks prior to the shooting; and (iii) Farook and his accomplice destroyed their personal cellphones and computer hard drives in advance of the attack, indicating they were well aware of digital forensics and making the likelihood of the agency finding anything of investigative value on the work-issued phone next to nil; as well as (iv) the remote possibility that this is a psy-op run by the FBI with Apple’s complicity, intended to tout the unbreakable security of iPhones to the rest of the world as a lure to malefactors, big businessmen, and world leaders, when all the while the NSA has the full exploit at the ready; despite all this, the FBI came to Apple with a court order based on the functionally medieval All Writs Act of 1789 and to the American public with hat in hand, playing the poor, put-upon public servant just trying to do its job on one, just one, little case that happens to involve Islamist terrorists on US soil (dead terrorists, but hey, they might be planning more attacks from beyond the grave).

Left: The audience at “Surviving Total Surveillance.” Right: Laura Poitras speaks at “Surviving Total Surveillance.” (Photos: Andrew Kist)


As novel, specific, and limited the FBI’s order seems at first glance, it is just the latest strike in the government’s decades-long war against encryption of digital voice communications and Internet-connected computers. For a pocket history of the “Crypto Wars” of the 1990s, when these issues first came into view for millions of Americans, look up the Clipper Chip and the Communications Assistance for Law Enforcement Act (CALEA). (Steven Levy’s 2001 book Crypto: How the Code Rebels Beat the Government—Saving Privacy in the Digital Age is a good primer.) The FBI has been strategically waiting for a case that would push the right emotional buttons in the American public to help them achieve their goals in this area. A terrorist attack inside the homeland provides the perfect cover, as it did for the rapid passage of the USA PATRIOT Act in 2001.

In fact, the FBI already has a number of other similar locked iPhone cases moving through the courts. On February 23, the Wall Street Journal reported that a newly unsealed court document indicated that the FBI was seeking to unlock “about a dozen” other iPhones, also using the All Writs Act as a legal wedge. Because none of these other phones was used in terrorism cases, you never heard about them. This gives the lie to FBI director James Comey’s repeated assertions that the Farook order is only about one phone. The case is about setting a precedent. Cyrus Vance, Jr., New York County district attorney, has already said to the press that he has “155 to 160” locked iPhones waiting for the conclusion of this case. There’s little doubt that the Chinese and Russian governments are also closely monitoring its progress. Apple’s refusal to build the same back door for them would hold little water if they’d already done so for the FBI.

This is not about one phone. Indeed, it is not even about breaking encryption. The FBI is compelling Apple to write a different version of its operating system (iOS) that would disable three security features preventing people or machines from guessing another user’s password: one, ten wrong guesses in a row, the phone wipes its data; two, during those ten guesses, the system creates increasingly long delays between each try; three, the phone does not allow a computer to make the guesses, only human fingers. The FBI wants these features removed so they can guess the password by brute force using a fast computer, trying every possible four- or six-digit permutation until they unlock the phone. Independent cryptographers, software developers, and computer security experts—people who actually understand the principles of digital security—are nearly unanimous in their opposition to the FBI’s order. Even former NSA and CIA director Michael Hayden, who never met a data exploit he didn’t like, has come out on the side of Apple. (This is so unlikely that it almost lends support to the psy-op theory.)

Supporters of the FBI have reached for myriad physical analogies for the situation (houses, safes, etc.) and can’t grasp why the idea of Apple writing this iOS just once for Farook’s phone and destroying it is untenable. Their arguments misunderstand the fundamental differences between physical and digital security. “The virtual world is not like the physical world,” Erik Neuenschwander, Apple’s manager of user privacy, stated in his declaration in support of Apple’s motion to vacate the FBI’s order, issued on February 25. “When you destroy something in the physical world, the effort to recreate it is roughly equivalent to the effort required to create it in the first place. When you create something in the virtual world, the process of creating an exact and perfect copy is as easy as a computer key stroke.” In other words, even if the FBI swore on the Bible that it will never ask Apple to build this exploit ever again, it most certainly will (it already is), as will state and local law enforcement agencies. Hence Apple’s engineers would either have to retain the documentation and rebuild a new version for every order, or they would do what anyone else who is constantly asked for something would do: They would store it.

Left: View of Laura Poitras, Disposition Matrix, 2016. (Photo: Sarah Wilmer) Right: View of Laura Poitras, Bed Down Location, 2016. (Photo: Matthew Carlson)


Needless to say, there would be few other pieces of software in the world more interesting to criminals, terrorists, malevolent hackers, spies, and foreign intelligence services. Apple is good at security, but so is the NSA, and yet Snowden, a contractor, liberated thousands of their most sensitive documents. The recent hack of the US government’s Office of Personnel Management, in which foreign actors absconded with the personal data of twenty-two million current and former US government employees, also makes the idea of storing such software unacceptably dangerous. Even if Apple were able to prevent any leak or theft of the alternate iOS, defense lawyers in criminal cases prosecuted using evidence obtained in this manner would be entitled to compel discovery of the iOS from Apple, not only the software itself but all of the methodology involved in its creation. From there, it will proliferate around the globe with the “ease of a key stroke.” Finally, unbreakable encryption software is already widely available and has been for decades; Apple does not have a monopoly. Sophisticated criminals and terrorists are already using it and will no doubt switch en masse if the FBI prevails in the Farook case, so the only people who would be negatively affected by this precedent are dumb criminals/terrorists and millions of innocent iPhone users around the world.

Apple is no saint when it comes to the commercial exploitation of personal data, though it is marginally better than Google and Facebook as it is primarily a hardware company, making actual products instead of packaging its users’ data as products. But it is doing the right thing in this case, while the FBI is being blatantly disingenuous. We never would have arrived at this impasse if the FBI had not instructed San Bernardino county officials to change the phone’s iCloud password, preventing one last automatic backup that could have revealed any data from the six weeks prior to the shooting. After publicly releasing its order, the FBI arranged for a local attorney to represent the victims’ families in a push to whip up public sentiment against Apple. When pressed, Comey even admitted that the FBI seeks to apply the precedent set in this case to others. It would of course be comforting to believe the government’s pure intentions, but look at the record: J. Edgar Hoover and his blackmail files; COINTELPRO and other domestic intelligence abuses that led to the Church Committee reforms; the fabricated rationale for the Iraq War; the machinations surrounding the CIA torture report; warrantless mass surveillance and other unconstitutional domestic snooping programs revealed by Snowden; Clapper’s perjury in congressional testimony; and on and on.

Poitras, a US citizen, is herself under effective exile in Berlin due to constant harassment and intrusive searches by US customs officials every time she returns to her native country. Some of her sources for CITIZENFOUR, including NSA whistleblower William Binney, found it necessary to imply that the intelligence community would have them killed for what they had disclosed. “He [Snowden] also said that he would never commit suicide,” Poitras wrote in her “Berlin Journal,” which recalls Winston Smith’s clandestine diary even as she describes rereading 1984. “What kind of fucking world is this that everyone in my film says this to me?” It is a world in which many hundreds of people will line up outside a major museum to see an oppositional, activist exhibition like “Astro Noise,” approximately half of whom (if we’re to believe current polling on the issue) are sympathetic to the FBI in the Farook case. This is the type of cognitive dissonance that the “Snowden effect” has instilled in the general public.

Laura Poitras, Last Seen, 2016. (Photo: @mleybishkis)


One of the components of “Astro Noise” is Bed Down Location, a darkened room with a large mattress-like cushion on the floor, encouraging viewers to lie down and observe projections of the night sky over Yemen, Pakistan, and Somalia, jurisdictions where US drones often fly overhead in pursuit of “targeted killings.” After passing through another segment of the show, Disposition Matrix, viewers enter a final room where two screens show, respectively, heat spectrum imagery of the viewers’ bodies as they lay on the cushion and a ticker of all of the viewers’ wireless devices, identified by MAC address, time, and location. This last reveal is intended to instill in viewers both a sense of fear and of complicity in the surveillance apparatus. As I walked into the final room and saw the screens, I was momentarily distracted by noticing Snowden’s father, Lon Snowden, among the crowd. Just then, a young couple saw the screens and the woman exclaimed joyously, “That’s us!” The thrill of recognition was not in response to the cleverness of the reveal or the message of the show; it was the same digital narcissism that keeps social media afloat and stops more people from grasping the implications of our current predicament and the part they play in it.

If you want to prevent and not merely survive total surveillance, do what you can to support Apple in this case, regardless of what you may think of it as a company. While it sounds counterintuitive in the post-9/11 era, law enforcement is not supposed to be easy. What keeps free societies from becoming totalitarian societies is precisely how many limits the state places on its law enforcement agencies. It’s a sad state of affairs when we’re dependent on the richest corporation in the country to school us on American civics and constitutional law, but that’s where we’re at. From the conclusion of Apple’s motion to vacate brief: “Examples abound of society opting not to pay the price for increased and more efficient enforcement of criminal laws. For example, society does not tolerate violations of the Fifth Amendment privilege against self-incrimination, even though more criminals would be convicted if the government could compel their confessions. Nor does society tolerate violations of the Fourth Amendment, even though the government could more easily obtain critical evidence if given free rein to conduct warrantless searches and seizures. At every level of our legal system—from the Constitution, to our statutes, common law, rules, and even the Department of Justice’s own policies—society has acted to preserve certain rights at the expense of burdening law enforcement’s interest in investigating crimes and bringing criminals to justice.”

Andrew Hultkrans