General Michael Hayden, the former director of the NSA and the CIA, told On Point host Tom Ashbrook that America is stronger and safer with unbreakable end-to-end smartphone encryption. Hayden joined On Point on the day that FBI and Apple testified in front of the House Judiciary Committee over an ongoing legal battle around the locked iPhone of one of the alleged shooters in the 2015 San Bernardino shooting.
Tom Ashbrook: We thought you, of all people, might be standing shoulder-to-shoulder with the head of the FBI James Comey, saying open the iPhone of the San Bernardino shooter. But you’re not. Why not?
Michael Hayden: First of all, Director Comey’s got a very good point. And if I were sitting in Director Comey’s chair looking through his lens, I might have his point of view. But I’m not, and I don’t. There are Constitutional questions as to whether Apple can be compelled. There are privacy questions, with regard to what the government can and can’t see. Tom, I’m not arguing any of those points, which are very important points, but they’re not mine today. Mine is a security question. And frankly, I think American security is better provided by not allowing the government to have exceptional or extraordinary access to otherwise unbreakable devices.
TA: Why in a nutshell?
MH: I was the director of NSA. When somebody pushed a door or a window into a wall of otherwise unbreakable encryption, my odds of breaking in get real high.
(…) Breaking through a wall with heavy encryption is very difficult, sometimes impossible. If you create a doorway. A pathway to allow the government to get through. That doorway or pathway will attract bad actors to try to get through there, as well.
TA: You’re saying that this is about unbreakable end-to-end encryption....And you’re saying that’s good for the United States. As a law enforcement guy, or security guy yourself- why?
MH: Imagine, if you will Tom, unbreakable encryption as a wall. When the government wants exceptional or extraordinary access. What they’re asking Apple and other companies to do is create a door, a window, or something, or an access point. Kind of extending the metaphor, Tom- a door even with really good locks isn’t a wall. It’s a weak point that allows other people to try to exploit it. And again- back to my point. When I’m talking about American security- I actually think the stronger we can make that wall, with regard to encryption, the better we will be even if it prevents the government in justifiable cases with a warrant- perfectly under law- to do that because it creates the condition I just described.
The last three years, Jim Clapper, who is our director of National intelligence, has in his worldwide threat briefing told Congress the single greatest threat to the United States now is the cyber threat. Why would you weaken your defenses against the cyberthreat? Even in the name of absolutely legitimate requirements over here with regard to fighting crime, or fighting terrorism.
TA: So, do you see unbreakable end-to-end encryption coming?
MH: I actually think it will be much more difficult in the future for law enforcement to do some of the things they have done in the past. But Tom- step back from this timeline a little bit. What law enforcement’s been able to do over the last 10 or 15 years may not be the norm. It may be the exception. The last 10 to 15 years, all of us have rushed into the cyber domain and put things we used to keep in a safe into our smartphone. That’s created a tremendous electronic environment for law enforcement and frankly for intelligence. But I can’t claim that’s the norm, because prior to that law enforcement and intelligence didn’t have that field to harvest. We may actually be returning to that pre-Gold Rush days that we had for the last 10-15 years. And both intelligence and law enforcement are going to have to go back to some of the old, more traditional approaches.
TA: Does this mean the cyber realm becomes a closed playground for criminals, for terrorists and the FBI, the CIA can’t get in there to see what’s going on?
MH: This is all an ocean of gray. And you’re making very difficult choices. Now look- I’ve actually talked to Apple about this. As you might expect, they were actually surprised and please with my position. And I said- ‘Yeah, guys. Before you start tearing the goal posts down here and celebrating, let me tell you what I would do as the Director of the NSA. As soon as I hung up with you guys, I’d call Congress and the White House and say I’m gonna need about $500 million more. Because I want to be able to break that encryption the old fashioned way. Through intelligence methods and sources. What I am worried about is that we build into Apple and the other devices a mechanism that makes that easier to do for everyone.
TA: This is so interesting. It’s kind of ironic, because essentially, as I understand it, you were the guy who built the metadata system that Edward Snowden laid out for the public later. You were very aggressive, as you say, in looking for technical solutions to these challenges. But you want to ratchet up the technical challenge, not down by Apple opening this. What, so only super advanced America security has a chance of getting in there?
MH: Tom, think of it this way. In both instances, what I was interested in within law to provide the most security that I could for the American people. And in this case I actually think the answer to strongest security is the unbreakable end-to-end encryption even though it makes other things more difficult.
TA: You’re suggesting let Apple have its wall- but then have the NSA and CIA figure out a new way to get around the wall. Are you confident that if you were the head of the NSA or CIA today, you could get around this?
MH: No, not at all. But Tom- I mean, intelligence, law enforcement. Even electronic intelligence, electronic surveillance is made up of many parts. We lived this in the 1990s with something called ClipperChip. And then-Director of NSA Mike McConnell was making the same arguments that Director Comey is making today and Mike lost the argument. We didn’t bake in access into silicon that allowed NSA to break through encryption. And as Mike McConnell tells the story- and thus began the best decade and a half in the history of electronic surveillance. When you think beyond the content of communications, all of us leave such extensive digital exhaust out there, that there are other tools that law enforcement and intelligence can use even if they don’t get access to the actual content of a communication. When you play this several moves down the board- step back and think of what we’re thinking about here. We’re going to legislate or have a court rule to outlaw technological progress. And I don’t think that’s a winning hand. Even if you can make that happen in America- this is a global enterprise now. Other companies will do this. And, frankly, American intelligence and American law enforcement will suffer in the long term if high end encryption is driven off shore and developed by foreign powers.
TA: While you’re here- it’s Super Tuesday, after all. I’m reading here you telling Bill Maher a day or two ago that if Donald Trump wins the presidency, that the U.S. military might refuse that order and that that might be justified in your view.
MH: Well, there are two things the candidate said that I object to. One is, “I’d waterboard and a lot more because they deserve it.” Now, look. I was head of CIA. We used enhanced interrogation techniques, but we didn’t do it because they ‘deserved it.’ We are not American justice. We are American intelligence. We did it not rearward looking, but forward looking. We needed to get information to protect Americans. And the other thing the candidate said was that he would put terrorist families at risk as part of his war-winning strategy against ISIS and like organizations. That’s actually inconsistent with the laws of war and conflict and the ethic of the American armed forces. And I fully expect that the American armed forces would not perform that action.
To hear to the full conversation about Apple, the FBI, and your privacy, listen here.
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