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Huawei controversy in light of Apple’s own fight with US spy agencies

Courtesy of The New York Times, artist Chappate

In a recent piece about the politicization of news concerning the Chinese telecom giant Huawei, some of our readers on made interesting comments that actually help one to connect the dots and see more clearly just how invasive the US government thinks it can be in terms of one’s personal privacy.

The comments in question (slightly redacted for conciseness here), said the following:

“Huawei categorically will NOT put back doors in their hardware for the NSA and other alphabet agencies to use to spy on all of us. That is the REAL reason.”

“The [effort] to demonize Chinese companies, especially the two biggest and best Chinese tech companies, has two [purposes]: one is to use their plight as leverage in the ongoing trade negotiations; the other is the US desire to destroy the Chinese economy so China would have to submit under US hegemony.

[Looking] at the spying accusations with a bit more common sense: what would China want to do with this flood of useless information? Contrary to the NSA who justifies its $85bn yearly budget by compiling a file on every person in the world and especially in the US to prevent terrorism, China spies only in directed ways. The terrorism the NSA is afraid of is not ISIS type terrorism from outside and it hasn’t prevented any of these attacks. What the NSA and the US government are afraid of is revolt by organized citizens. Hence the surveillance and scrutiny of activists and any organized group of people. China has no use for such data from the US and given a smaller budget, uses it to keep order in China and elsewhere by spying when other signs indicate a problem could be brewing. Dragnets are the specialty of US [spycraft].

[This] makes [it] clear that the US accusations are invented for political reasons.

These comments are correct and they bears reflection.

Another comment I saw, that seems to have disappeared, noted how the FBI tried to do the same thing with US company Apple. This “alphabet agency” wanted to gain access to Apple’s iPhone because (they said) they might find needed information to solve a case where a mass shooting took place. While the event itself was tragic, Apple bluntly refused this request, and as shown in full at NPR’s report, linked here before, here is why:

A Slippery Slope

The FBI says the custom-written software would be for this phone specifically. Apple doesn’t buy it:

  • “The government says: ‘Just this once’ and ‘Just this phone.’ But the government knows those statements are not true; indeed the government has filed multiple other applications for similar orders, some of which are pending in other courts. … If this order is permitted to stand, it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent.”

A Dangerous Precedent

  • “… compelling Apple to create software in this case will set a dangerous precedent for conscripting Apple and other technology companies to develop technology to do the government’s bidding in untold future criminal investigations. If the government can invoke the All Writs Act to compel Apple to create a special operating system that undermines important security measures on the iPhone, it could argue in future cases that the courts should compel Apple to create a version to track the location of suspects, or secretly use the iPhone’s microphone and camera to record sound and video.”

An Overreaching Court

The court order instructing Apple to comply cites the All Writs Act, which broadly permits courts to “issue all writs necessary or appropriate” and has been used to compel companies to assist law enforcement in investigations. But Apple says this request overreaches the court’s authority — that this particular court order is creating a new power, not using an existing one. Only Congress, by passing a new law, could make such a demand legal, Apple argues:

  • “[The All Writs Act] does not grant the courts free-wheeling authority to change the substantive law, resolve policy disputes, or exercise new powers that Congress has not afforded them. … Congress has never authorized judges to compel innocent third parties to provide decryption services to the FBI. Indeed, Congress has expressly withheld that authority in other contexts, and this issue is currently the subject of a raging national policy debate among members of Congress, the President, the FBI Director, and state and local prosecutors.”

A Tenuous Connection

The Supreme Court has previously found that the All Writs Act can be used to force a company’s cooperation, provided that the company was not “far removed” from the case in question. Apple argues it is, indeed, far removed:

  • “The All Writs Act does not allow the government to compel a manufacturer’s assistance merely because it has placed a good into the stream of commerce. Apple is no more connected to this phone than General Motors is to a company car used by a fraudster on his daily commute. … Indeed, the government’s position has no limits and, if accepted, would eviscerate the ‘remoteness’ factor entirely, as any company that offers products or services to consumers could be conscripted to assist with an investigation, no matter how attenuated their connection to the criminal activity. This is not, and never has been, the law.”

A Violation Of Constitutional Rights

“Under well-settled law, computer code is treated as speech within the meaning of the First Amendment,” Apple says.

Under some conditions, the government can force companies to make statements of various kinds. But Apple argues that in this case, given the uncertain value of what’s on the iPhone, the investigators failed to prove a compelling state interest in getting into the device and so lack a constitutional reason to compel Apple to speak — especially when the “speech” (aka code the company would write) is in direct opposition to Apple’s public stance in favor of encryption and security.

Apple also argues that the request violates the company’s Fifth Amendment right to due process:

  • ” … the government’s requested order, by conscripting a private party with an extraordinarily attenuated connection to the crime to do the government’s bidding in a way that is statutorily unauthorized, highly burdensome, and contrary to the party’s core principles, violates Apple’s substantive due process right to be free from ‘arbitrary deprivation of [its] liberty by government.'”

NPR went on to report that Apple even shot a zinger back at the FBI, as their investigators apparently tried to hack into the iPhone in question, only to get utterly locked out, before trying to force Apple to comply!

Apple also suggested that the FBI’s current problem is one of its own making — that federal investigators who lacked sufficient knowledge of Apple’s security systems blocked themselves from an easier way of accessing much of the phone’s data:

  • “Unfortunately, the FBI, without consulting Apple or reviewing its public guidance regarding iOS, changed the iCloud password associated with one of the attacker’s accounts, foreclosing the possibility of the phone initiating an automatic iCloud back-up of its data to a known Wi-Fi network …which could have obviated the need to unlock the phone and thus for the extraordinary order the government now seeks. Had the FBI consulted Apple first, this litigation may not have been necessary.”

This was attempted with a company that is rightly considered one of America’s top brand names, period. This was not an attempt to get a small mom-and-pop tech service to comply, which, sadly might have succeeded, though every such company has exactly the same rights as Apple does.

But when we bring a similar effort into force against Huawei, as a Chinese company, doesn’t that make it different? After all, Huawei is not an American company and it has at least some connection to the Chinese government, if not only simply the fact that it is in China, a Communist (sort of) nation!

This is the point where politics run up against reality. This statement implies one major point: Politics are not real.

In a sense, and most particularly in Huawei’s case, this is absolutely true. As we covered in the previous piece, the whole notion of a Chinese company hurting itself and its country by engaging in international espionage through the use of its technology is utterly and hilariously insane. In fact, especially a country like China, where there is a whole world of non-Communist-liking nations out there that the Chinese want to do business with. One bit of proof of spying, and the whole thing shuts down for China. That is worse than leading with the chin. The only analogies for how stupid something like this actually is are utterly absurd – perhaps one might find such displays in a Monty Python movie.

However, American foreign policy positions seem to be largely arbitrary. The issue with Huawei as a “threat” to security is code language. Huawei IS a threat, but only to the security of other telecoms in the West because the Chinese got to a viable 5G network before anyone else did. Geopolitical threat? Hardly. Business and profit threat? Definitely. In fact, the threat level of being outdone in business spiked so high that The New York Times Editorial Board published an opinion piece saying the US ought to work closely with Russia (!) to thwart the evil dastardly Chinese.

Wait. I thought Russia was the evil dastardly country, that up-and-coming Christian superpower and the bane of secularist liberals everywhere.

Nope. For the New York Times, Oceania is at war with Eastasia, and Oceania has always been at war with Eastasia.

It is amazing how thin the layer of believability is becoming for many things the American foreign policy wonks try to do.

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What do you think?

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BobValdez
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BobValdez

Thank you for an insightful article. Also glad you found my previous comment worthy of mention. Thumbs up.

Regula
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Regula

It is more likely that Huawei is in fact a threat to the US spy machine: Huawei refused to install NSA accessible backdoors into its 5G networks and its phones, 4G or 5G. Given that Huawei is some 18 months ahead of the US in 5G networks, that risks to stop dead the US spy capacity that apparently relied on backdoors in US designed phones. With Huawei on its way to become the world’s number one seller of phones, that will exclude a large portion of US Intel. In addition, 5G tech allows for all kinds of insight/access to 4G… Read more »

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