Apple vs. The FBI

On December 2, 2015, Syed Rizwan Farook and Tashfeen Malik, a married couple from Pakistan living in the city of Redlands, CA. killed 14 people and injured 22 others in an ISIS inspired attack at the San Bernardino County Department of Public Health.  The couple later died in a shoot out with police.

The investigation into the terrorist attack has created a titanic legal battle between the world’s most valuable technology company and the U.S. government that may settle, once and for all, the issues of encryption, privacy and law enforcement.

On February 16th Judge Sheri Pym,U.S. Magistrate Judge for Federal District Court for the District of Central California, ordered Apple Inc. to assist the FBI in breaking the encryption of the couple’s iPhone 5c.  The judge cited the All Writs Act of 1789 in her decision. This law gives a judge the ability to issue court orders for matters not covered under current law.

On Feb. 17 Apple CEO Tim Cook responded in a letter calling Judge Pym’s court order “dangerous. “We have no sympathy for terrorists,” he said. “But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.” 

The Justice Department responded, “It is unfortunate that Apple continues to refuse to assist the department in obtaining access to the phone of one of the terrorists involved in a major terror attack on U.S. soil.”

The federal government argued the information contained on the phone could be vital to detecting  terrorist activities and connections.  However, the phone does not actually belong to Farook but the County of San Bernardino and may not contain any information of value to the investigation.

Apple and many technology companies are pointing at the slippery slop that could be created if the government is allowed to force companies to break the security of their devices. In the post Snowden era this is a potent argument that is unquestionably valid.

On Apple’s side are numerous technology companies and privacy advocates.  Google CEO Sundar Pichai tweeted his support warning that “forcing companies to enable hacking could compromise users’ privacy.” Brad Smith, Microsoft’s chief legal officer called for a debate on the matter and condemned government surveillance programs.

Bill Gates, Microsoft’s founder, seems to be supporting the FBI. Gates told the Financial Times  “”Nobody’s talking about a backdoor, so that’s not the right question. This is a specific case where the government is asking for access to information. They’re not asking for some general thing, they’re asking for a particular case.” Gates went on to say the government is only looking for “a specific set of information” and not a master key to break into other phones.

 Later Gates gave a televised interview with Bloomberg in which he claimed to be “blindsided and disappointed”  the article didn’t correctly state his view on the dispute which he said was ultimately a decision for the courts.

Multiple civil rights groups, including Electronic Frontier Foundation and the Center for Democracy & Technology also support Apple’s position.

But the American people appear to be siding with the courts. According to a survey released by the Pew Research Center 51 percent of polled respondents believe Apple should help the FBI create technology that would allow the bureau to access the phone’s data.  Thirty-eight percent of the respondents disagreed while 11 percent had no opinion.

Apple’s argument that once it unlocks one phone it leads to more requests for unlocks seems to ring true. According to a recent filing in the New York federal court there are at least a dozen requests by the Department of Justice to unlock iPhones.

That request to the New York court was rejected. Yesterday Judge James Orenstein blocked the Department of Justice request saying federal investigators can’t use All Writs Act of 1789 to force Apple to comply.

Judge Orenstein wrote the government’s argument doesn’t justify “imposing on Apple the obligation to assist the government’s investigation against its will.” Orenstein went on to say that  law enforcement is inappropriately trying to use powers that it hasn’t been given by Congress.

The DOJ stated Apple’s arguments in the court are inconsistent. In a statement issued the DOJ said,  “Apple … only changed course when the government’s application for assistance was made public by the court.” The statement seems to suggest that Apple is now trying to seem protective of customers’ privacy.

Apple 1 – DOJ 0

Breaking It Down

Its rare that you have two side that are both correct but this one of those times. What we are truly dealing with is the choice of how much protections can we give to criminals and terrorist and what powers we give to law enforcement?  Apple is right to be reluctant to break its own encryption. It is a fundamental right of all citizens to be free of unreasonable search and seizure and be secure in their person. However I do not see how this is any different than a cop serving a search warrant to a suspect’s home. And that is why I do not understand why Apple is refusing this government request. In reality this is a test of how corporate America is going answer the call to maintain some control of their technology in order to preserve law and order. They need not give up the keys to the kingdom nor should  they be forced to. But if the government comes knocking warrant in hand they should be prepared to answer it. This is becoming a situation where law enforcement is getting outgunned by criminals that know as long as they keep their criminals records on an Apple phone then for the most part they are safe. Is that what we want terrorist to think? I don’t think so. Apple has every right to sulk and fight to the last lawyer standing but they also have a duty to the nation and their customers. Ignoring how a person uses their product regardless of the injury it causes is a gun industry trait and below Apple’s gleeming corporate image.   We need to at least have the threat of being able to unlock any phone used to commit a crime if the court so orders it. That simple capability is enough to deter a lot of crime.  Apple should relent and obey the court order.