The following was originally published on February 21, 2016 on Seacoastonline.com.
This week, Apple CEO Tim Cook published a strongly worded letter pushing back against a court ruling that requires Apple to help the FBI gain access to an iPhone that belonged to one of the San Bernadino terrorists. If Apple complies with the court order, privacy advocates predict the dawn of 1984, that Orwellian novel that portends the ever present, highly intrusive “Big Brother” government knowing of your every thought and action.
Do you need to be concerned about this fight? In my opinion, no, you do not. Why? Here is my view and please keep in mind I am not a legal expert. I view this court order to be, in effect, an electronic search warrant. Under our Constitution, law enforcement agencies are not allowed to have a master key that unlocks every door to every home and commercial building so they can walk in and search for any reason they wish. In order to search premises, they need either probable cause for an immediate search or a search warrant signed by a judge that affords them unfettered entry. As I said, I am not a legal expert, so I hope I have summarized that correctly.
In this instance, one of the terrorist’s iPhone may have communication records or other data on it that will help the FBI definitively ascertain whether they were lone wolf terrorist sympathizers or acted with the direction and tangible support of a known terrorist organization. Because of the passcode security and device encryption Apple has built into the iOS software that runs the iPhone, the FBI is unable to access this information. The FBI requested Apple’s assistance in doing so and Apple declined. As a result, the FBI went to court to see an order forcing Apple to assist it. The court agreed and issued such an order.
So a court has ordered Apple to comply and Apple is trying to refuse. Again, I am no legal expert, but to me it seems like Apple is treading on thin ice. As far as I know, you either comply with a court order or go to jail for contempt. Certainly, an entire company cannot be imprisoned so how this would be enforced is a topic for another to comment on.
Apple’s contention is that the FBI is asking it to create a version of its iOS software that will allow the FBI to disable the passcode and unlock the encryption so it can review the apps and data on the iPhone. The issue is that Apple feels the FBI will take possession of this new version of iOS and use it whenever and however it wants to gain access to any iOS device (iPhones and iPads) whenever and however it wishes, thus allowing unlimited covert surveillance on anyone using these devices. As I have researched this matter, I do not agree this is what the court has ordered. It appears to me the court ordered Apple to provide the FBI with unrestricted access to this one iPhone for a very specific criminal investigation with significant implications for our national security. Due to the specific nature of the order, I personally do not have an issue with it.
So the real question becomes, is this technically possible and what are the implications to all of us who use any type of connected device? To the first question, the answer appears to be yes. I am not an iOS developer, so I am not able to definitely say whether or not Apple can do this. From the research I have done over the last few days, it is technically possible and Apple has the resources to comply with the court order. Apple’s resistance seems to be entirely on principle at this point. It is concerned about the privacy implications this would raise. While I can appreciate and even applaud that concern, I don’t think it’s valid in this case.
It is true that if companies create back doors or other methods of defeating the security of a given device that our privacy becomes at risk. The entire fiasco with the National Security Agency’s domestic surveillance program is proof the risk is real. However, I believe it is entirely possible to develop the necessary software code to comply with the court order without providing that same code for unlimited ongoing use. In effect, I believe this can be addressed in a one-time manner to comply with the court order and assure the public of the safety of their personal data, provided they are not breaking the law or conspiring to cause harm to the public. If this argument prevails, then we need to look deeply into all manner of security systems, including manufacturers of locking systems, security systems, surveillance systems and more.
I appreciate the principle of the argument as I said before. However, in this case I believe the argument is misguided and our right to privacy is not under attack. This is a case worth monitoring as depending how this plays out, there could be serious implications for the protection of all manner of digital assets, but for now, I think this is more of a public relations battle than anything else.