Author: Poblete Tamargo LLP

Posted on

The Elephant in the Room: Accountability and Consequences in Obtaining Encrypted Data

As I have written in the past, a balanced approach between privacy interests and national security interests is critical in developing successful policies. Should compromise become one sided, making it  “either…or” in terms of interest, i.e. either a privacy issue or a national security issue, then the resolution to this debate becomes more difficult to find.

In March, Representative Trey Gowdy questioned Bruce Sewell, the General Counsel and Senior Vice President of Legal & Global Security for Apple, during a House Judiciary Committee hearing titled “The Encryption Tightrope: Balancing Americans’ Security and Privacy”. The focus of the hearing was to examine the present issues which law enforcement faces in protecting the public should encryption technology be used for harmful purposes. An issue that has been highlighted by the FBI-Apple debate.

When addressing encryption, the working group should accept the following parameters:

  • Encryption technology is evolving.
  • Encryption technology is a necessity for businesses since companies of all sizes will become suspect to hackers.
  • The procedures to request encryption data must consist of vetting. This will require trust, a perception that many believe the Federal government is unworthy of.

Encryption technology is and continues to evolve. The rapid innovation in the technology sector is blatant. Any legislation that fails to take this into account will make the legislation obsolete, because the technology would have outpaced what the legislation intended to address. Instead of creating regulations based on current technology, Congress should take the regulatory humility approach . For more on regulatory humility see here.

Encryption is a business necessity. As we become more dependent on technology, we increase availability of potential targets for hackers. The encryption of personal information is one defense that an individual would have against hackers. The ability to protect private information will become necessary for average consumers forcing encryption software and technology to provide affordable options for the general public. Cybersecurity will no longer be considered a luxury. Any pending legislation that does not accept this fact will thwart the availability of defense against hackers to the general population.

The procedures for obtaining encrypted data requires trust. This is the proverbial elephant in the room. Here the Congress needs to address two issues; accountability and consequences. Despite the National Security Agency’s assurances that they are not monitoring US citizens, there is still a lingering doubt stemming from the Snowden disclosures. Any federal legislation that allows an agent of the US Government to have access to a persons encrypted texts or emails without proper vetting is highly suspicious. By proper vetting, I am referring to a strong legal standard that a government agency would need to show to the court in order to decrypt information. Obviously, a warrant is necessary. This vetting standard must take into account the balance of the two interests-privacy and national security.

The second issue of equal importance regards accountability. What would happen to an agent or agency that abuses power by accessing information without viable reason? History tells us that Presidents have used government agencies to go after enemies of the State. Acceptable encryption legislation that can be trusted by the public must include actual and tangible consequences for those who abuse such privileges.

Posted on

Havana’s Grand Theater Serves as Stage for Another American President

In an article from the International New York Times, New York Times reporter Victoria Burnett discusses President Obama’s recent trip to Cuba. Last week, the president spoke at the Gran Teatro de La Habana Alicia Alonso, a building that had been confiscated by the Cuban government after the 1959 Communist takeover.

The Gran Teatro was once known as the Galician Center “built with money from Cuba’s large Galician community from Spain.” It is one of many buildings that was confiscated by Fidel Castro in the revolution. 

Burnett writes, “1898 Compañia de Recuperaciónes Patrimoniales, a Spanish organization, said that it represents $1 billion worth of claims by previous owners of property in Cuba seized by the government. Claims in the United States are about double that amount.”

PobleteTamargo attorney, Jason Poblete, who represents owners of confiscated Cuban properties had suggested that the President “pick a place that’s neutral,” instead of using “someplace that was stolen from people who were never made whole for it.”

The complete article can be read here.

Posted on

US-Cuba Thaw Ignores Embargo

On February 29, The Washington Examiner published an article discussing the President’s recent announcement about his upcoming visit to Cuba. In “US-Cuba Thaw Ignores Embargo” the author examines the many aspects of US-Cuba relations that have yet to be addressed by the Obama administration. 

Not only has the president allowed for more travel to the island, he has granted commercial flights and ferry services, as well as allowing the first American factory to open in Cuba. The one crucial factor of the embargo that the President has yet to address are the 5,913 certified property claims against Cuba. The article explains;

“At the time of the Cuban revolution in 1959, Americans and American companies were the largest foreign investors on the island. The new Cuban communist government seized that property, regardless of who owned it.

Some American companies lost millions of dollars in property, and many more individuals lost plantations and homes, some passed down through generations.”

The embargo against Cuba cannot be lifted until the Cuban government has paid for the confiscated property, as outlined under the 1996 Helms-Burton Act.

“Nothing has been done on the one issue that we put defenses in place to deal with, which is the property issue,” said Jason Poblete, whose law firm Poblete Tamargo represents several claimants. “You can’t really avoid it because it’s the reason that the embargo was put in place in the first place.”

This issue goes beyond the claimants as those hoping to do business in Cuba should consider the legal consequences of conducting business on stolen property. Under US law, it is illegal to do business on confiscated property. It is clear that the Obama administration is continuing to ignore the issue of property claims in its negotiations with the Castro Regime.

“The settling of claims is pretty much the linchpin in all of this because you can’t drive foreign policy on human rights improvements alone. There are always economic interests,” Poblete said.

It is premature for anyone to get excited about the President’s upcoming visit to Cuba. Just like we have seen with the issue of human rights abuses, which have increased since the US and Cuba have begun renewing ties last year, little concrete actions have occurred addressing the issues surrounding the embargo. Discussions and meetings are nice, but until actual changes are made and the President and the administration take concrete action, little has improved in US-Cuba relations.

Posted on

Apple vs. FBI

The order calls for Apple to provide “reasonable technical assistance.”  Reasonable technical assistance is defined by the following:[i]

  • “…Bypass or disable the auto-erase function…”
  • “Enable the FBI to submit passcodes to the [iPhone] for testing electronically; and
  • “Ensure that when the FBI submits passcodes to the [iPhone] software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.”

The order does state that Apple would need to develop a “software image file” (SIF) that is “coded with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE”, (i.e. the phone in question).

FBI Director James Corney released a statement on February 21, stating, “The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly.”[ii] Public opinion seems to be in supportive of this view as seen in a recent poll conducted by SurveyMonkey with 51% in agreement with the FBI.[iii]

Apple, however, claims that the FBI through this order is calling “…[for] a new version of the iPhone operating system, circumventing several important security features and install it on an iPhone recovered during the investigation. In the wrong hands this software, which does not exist today, would have the potential to unlock any iPhone in someone’s physical possession.”[iv] 

Apple and its supporters argue that this would not only weaken Apple’s encryption codes, but will also create precedent for other foreign governments such as China, Iran, and others to force companies to develop or provide that same key. Both sides have legitimate concerns, however, both sides need to have an honest assessment of the world around them. Apple needs to recognize that this matter is not just a criminal case, but also one involving national security.

Consider a scenario in which a terrorist attack causes a catastrophe on a much larger scale. A government agency may make a similar request to the FBI, and what will Apple do? The pressure to comply fueled by grief and anger will be enormous. Will Apple stick to its conviction to the point of consumer boycotts and the possibility of closing shop?

At the same time, the US government needs to understand that the power they are requesting has the potential for great abuse. The image of a federal government agent or official that has little or no accountability monitoring phone conversations, whatever the motivation, is not comforting. The temptation to rely on backdoor encryption is too strong for any government agency or official to withstand. 

Recently, members of Congress have expressed their frustration with Apple. Some have called for a commission to study the encryption issue much further.  While the idea of a commission is great, there is concern as to who will be making up such a commission. House Homeland Security Committee Chairman Michael McCaul (R-TX) and Senator Mark Warner (D-VA) are expected to introduce legislation to create a national commission to investigate police use of encrypted data and protection of privacy.[v] The Senate Intelligence Committee is also working on a bill regarding encryption, with efforts led by Senators Richard Burr (R-NC) and Dianne Feinstein (D-CA).[vi]

Ideally, any legislation concerning encryption should balance an individual’s right to privacy and the security of our Nation. There should be no reason why this cannot become a “both and”, instead of an “either or” scenario. Any encryption legislation should recognize that encryption technology is a unique business product that provides relief from customers’ fears that their emails will not be hacked resulting in the loss of personal or business information. At the same time there should be strong accountability measures (i.e. criminal or civil penalty) for any government agent or official that abuses the backdoor encryption or the access to the encryption key.[vii]   

If the debate becomes only a privacy issue or only a national security issue, then we as a nation lose. We need to reconcile those two interests simultaneously in order for this to be successful. 


[i]See https://regmedia.co.uk/2016/02/17/apple_order.pdf (last accessed Feb. 23, 2016).
[iii]See “In Apple vs. the FBI, Americans Want the Phone Unlocked” from http://blogs.wsj.com/digits/2016/02/20/in-apple-vs-the-fbi-americans-want-the-phone-unlocked/ (last accessed Feb. 23, 2016).
[iv]See http://www.apple.com/customer-letter/ (last accessed Feb. 23, 2016).
[vii]A “backdoor” in computing is a method of bypassing the normal method of authentication. Backdoors are usually inserted into a program or alogorithm before it is distributed widely. They are often hidden in part of the design of the program or alogorithm. In cryptography specifically, a backdoor would allow an intruder to access the encrypted information without having the correct credentials (from stanford.edu)
Posted on

Companies Seek Payback for Assets Stranded in Cuba

In an article by Agenda Week, a publication of The Financial Times, details the corporate compliance side of U.S. certified property claims against Cuba. Several experts outline possible strategies for companies seeking compensation for confiscated assets as well as what companies that engage in the Cuba marketplce should consider when reviewing compliance risk issues that involve properties in Cuba subject to a claim.

... Companies such as Exxon Mobil and Chiquita Brands International are currently waiting to hear if the government of Cuba will repay them for assets confiscated by Fidel Castro during the expropriation of American property beginning in 1959. 

… PobleteTamargo attorney, Jason Poblete, notes that any discussion on settlement of claims requires authorization from the US government. He also stresses that though physical property will not be given back, US companies or citizens cannot sell a claim. Though many companies have expressed interest in seeking an alternative means of reparation, such as preferential treatment in joint ventures, Poblete points out that some US companies may not be interested in future Cuban ventures and want only to be paid back. 

… For companies looking at commerce with Cuba, boards must ensure that they are not dealing with previously confiscated assets or will find themselves trafficking in stolen property. Poblete says that due diligence for any company planning to expand into Cuba includes contacting the State Department to determine whether the Cuban business has claims against it. Poblete also advises that corporate representatives regularly check to see whether foreign entities are trafficking in U.S. companies’ assets. A transaction might be actionable in foreign investors’ home countries or in the United States.

… Nevertheless, trade and commerce will not open up between the US and Cuba until claims are settled. Poblete says that the process of settlement may frustrate companies as negotiations between the two countries are held in secret, and the government is not obligated to release a transcript. However, Poblete says it’s promising that discussions are under way.

… “But for the embargo to be eased, this has to be settled,” he says. “Access to the U.S. market is a privilege, not a right. If you want U.S. investors to do business in Cuba, you need to take care of these old claims. You also need a mechanism that protects property rights. What good is it to go to there if you don’t have a mechanism to resolve your claim?”

The full article can be found here. (Subscription required)