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Apple vs. FBI: The War for Digital Privacy Post-San Bernadino

Howard Kurtz - 2/26/2016

 Apple Refuses to Comply with FBI Request to Unlock Suspected Terrorist's iPhone

Syed Farook worked for San Bernadino County and was given an iPhone 5C to use for work. Thus, the local government owned Farook’s phone. The FBI obtained a search warrant and Apple readily provided the Bureau with all of the data Farook had backed up using Apple’s cloud based storage services. The periodic data backups ceased in mid-October, several weeks before Farook and his wife carried out their attack on December 2, 2015.

 

In 2014, due to growing concerns about digital privacy, Apple updated the encryption software for the iPhone operating system to strengthen the ability of users to protect their data. Apple could no longer unlock a user’s phone without their passcode and too many attempts to unlock a phone unsuccessfully would completely erase all data on the device. Prior to this software update, Apple had assisted the FBI in unlocking iPhones on at least 70 prior occasions. When asked to unlock Syed Farook's phone by the Bureau, the tech giant refused, even though the FBI had a court order.

The FBI argues that it doesn’t want a full-scale override of Apple’s encryption software; the Bureau just wants the company to write a digital backdoor for this particular phone. Yet this is a fundamental (and perhaps deliberate) misunderstanding about how encryption software works. Apple’s engineers can’t simply create a software exploit solely to target Farook’s phone. Any encryption workaround that is created could be used to access data on millions of iPhones. Even if the FBI is completely sincere that it only wants Apple to create an exploit for a single phone, it is ridiculous to believe that the Bureau would never again request such a favor of the tech giant.

Because written law can move so slowly at times, I respect that at times older laws must be interpreted in the context of modern circumstances, especially when it comes to technology. Contrary to what some legal scholars may argue, I think that it is better to view foundational legal documents like the U.S. Constitution as capable of being adapted to contemporary situations. The Founding Fathers may never have been able to dream of devices like personal computers and smart phones, but it is a fair bet that they would agree that the information on these devices shouldn’t be accessible to law enforcement on a whim. Furthermore, the Founding Fathers clearly saw the justice in law enforcement generally needing a warrant to enter someone’s home, but it is inconceivable that they would approve of a government intrusion on one home that could then subsequently be used by both government and private entities to access millions of other homes. And don’t be fooled – this is essentially what the FBI is asking of Apple.

I don’t believe that the FBI has the ability to contain the multitude of security issues that could occur for private users should they force Apple to break the encryption on Syed Farook’s phone. It is simply impossible for Apple to break the encryption on Farook’s phone in a way that could not also then be used on every other iPhone in existence with that particular iOS update. Apple has already done its due diligence in complying with the FBI’s request to turn over data – every bit of data that Apple could turn over without compromising the security of its other users has been given to the FBI. I think it is even likely that if Farook’s phone had an older operating system without the advanced encryption in place, Apple would be happy to unlock it. The reality, however, is that the FBI is trying to force Apple into a position that would make the overwhelming majority of Apple’s customers less safe. What is to stop hackers from using this to their advantage? What's to stop the FBI from making this request again for another phone and another? When will the FBI stop asking for phones to be unlocked only for terrorists and killers? It would only be a matter of time before the Bureau would ask the same for the phones of suspected drug traffickers or child pornographers or even people accused of smuggling stolen goods?

This is a highly sympathetic case. The San Bernadino shooters left 14 people dead and 22 people seriously injured after their rampage.The Federal Bureau of Investigation is under enormous pressure to get to the bottom of why the attack was carried out and what could be done to prevent another attack like it in the future. But what the FBI is asking of Apple is wrong and counter-intuitive to their purpose for existence.You can't argue that you are trying to protect the American public if your actions will make their data less safe. We live in a time where people store an incredible amount of personal data on a device they carry with them at all times. Without proper protection, that data is at risk. As noble as the ends are for the FBI, they cannot justify the means in this case.


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