The FCC’s broadband privacy bid, Apple vs. the FBI and a security commission bill in congress are all being weighed.

All the three branches of federal government in a rare confluence of events, are weighing changes which would affect how and when personal data is accessed.

Somewhat approaches are contradictory. Citizen privacy would be protected by some moves, while by government agencies other could result in more access to records which is kept by smartphones and business users about personal informations. At the center of the discussion, there is Encryption Technology, with intelligence officials who are eager to find ways for the detection of communications on smartphones which are used by terrorists and criminals.

Before Congress as well as the executive branch, in the federal judiciary, various actions are taking place.

ISP and FCC Privacy

In the latest proposal which was made last week, the Federal Communication Commission wants internal service provide to collect or receive customer permission before their privacy data is used for marketing and various other purposes.

At March 31st Meeting, the FCC will debate the proposal. From nearly 60 digital and privacy rights groups including Free Press, the proposal quickly won an endorsement.

Meanwhile, the opponents have also emerged, including Innovation Foundation & Information Technology who said US Federal Trade Commission’s broadband’s oversight provider already provides security to broadband customer privacy while making a privacy balance between innovations and industry costs.

Both FTC Chairwoman Edith Ramirez and FCC chairman Tom Wheeler appeared together in January at CES trade show to expand their efforts to protect privacy of customer.

The FBI and the Apple

FBI’s attempt to force Apple to write new software which is also receiving big headlines that would override password prediction on the mass shooter’s iPhone in last year’s deadly San Bernardino, Calf, attacks.

On 16th Feb, Magistrate Judge Sheri Pym, given order to Apple to comply, but the company is appealing the decision on various legal grounds including constitutional. On Tuesday, a hearing on appeal is set. Many experts are expecting that the case will end up at the US Supreme Court.

Congressional Action

To create 16 member commission on technology and security challenges, legislation expected to pass in Congress. The commission, which is drawn from a board base of privacy and security advocates, to issue a final report, they would have an year.

Sen. Mark Warner (Da-Va), who is one of the co-sponsor of commission, said that the group can “strikes an appropriate balance which protects American Security, American’s Privacy and American Competitiveness”.

A big issue for commission’s backers is ensuring that Congress not pass knee-jerk legislation seeking workaround or backdoor of encryption which is used on smartphones or other devices. The main concern is, since several encryption apps are available from foreign companies which is out of reach of US laws, only US based regulation would be hurt. Furthermore, terrorists can build their own apps or use apps developed in other countries.

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Timing Matters

Analysts noted that while many concern over privacy and encryption rose out of the mass shooting attacks in San Bernardino or Paris, before all major branches of government, the recent deliberations can be tied to the election calender.

The officials and FCC commissioners at the Department of Justice, President appoints the FBI and other security agencies, and term of Barack Obama end in January. The same goes for one third of the members of the Senate and 435 members of the House.

The Apple and others in the Judiciary branch, could drag on well past January. If the case goes in Supreme Court, the appointment and confirmation of ninth justice to replace Antonin Scala who is recent deceased conservative, could have bearing on the outcome.

Potential Contradictions

While the FBI and other agencies are forcing for smartphones access which is specifically designed by Apple for the protection of personal information and other government actions like the one before FCC, are going in other direction.

Avivah Litan who is a long time security analyst at Gartner, said in an email that “The FCC is right on the mark for protecting privacy of the consumer, but it is also in direct contradiction in spirit to what FBI is asking for from various technology companies”.

Litan said that “There is ton of rich data at ISPs which can be used to track and identify criminals and terrorists. In fact, this data is more fertile in comparison to the what is on the personal smartphone, because it reveals network and connections which involves terrorists and crime rings”.

Given that a terrorists or criminals could resort to using a prepaid burner phones easily – as happened in San Bernardino attack with two other phones. Litan suggested that for FBI, going after smartphone protection with encryption might not be the most effective course.

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Marx Clark