In dispute with FBI, Apple argues security as motives on both sides draw questions
The FBI on Tuesday received a court order that would force Apple to assist the FBI in hacking an iPhone used by one of the San Bernardino terrorist attackers. As Apple chief Tim Cook puts it in a letter to customers, “Specifically, the FBI wants us to make 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.”
The government’s case rests on the “All Writs Act,” which originated in 1789. Apple is appealing the ruling.
Since Tuesday, observers have offered a variety of opinions supporting the government, Apple, or a middle ground. Explaining Apple’s position, Cook continues in his customer letter, “The implications of the government’s demands are chilling. If the government can use the ‘All Writs Act’ to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”
Cook says that the FBI may use different words to describe what it wants Apple to do, but he adds, “Building a version of iOS that bypasses security…would undeniably create a backdoor.”
Susan Hennessey and Benjamin Wittes at Brookings take issue with Cook’s argument. In an article titled “Apple is selling you a phone, not civil liberties,” they write, “Apple is being mischievous here, and the company’s self-presentation as crusading on behalf of the privacy of its customers is largely self-congratulatory nonsense…. Far from the ‘unprecedented’ ‘overreach’ of Apple’s rhetoric, given the uncertain state of the law and the stakes in the case in question, it would have been akin to malpractice for the FBI and Justice Department to not fully explore the scope of Apple’s obligation to help the government effectuate a warrant in a major ISIS case.”
They also contend that Apple is overstating the threat to user privacy. “The government has not, in fact, demanded that Apple ‘build a backdoor to the iPhone.’ It has demanded that Apple build a backdoor—if that’s even the proper analogy—to one iPhone. If the company is worried about the threat of that ‘backdoor’ leaking, it can destroy the modified operating system immediately. What’s more, Apple’s argument about this move’s setting ‘a dangerous precedent’ is altogether unconvincing. If government access is appropriate here, and demanding technical assistance is appropriate, then setting a precedent for future appropriate uses is not a problem.”
However, The New York Times cautions, “…writing new code would have an effect beyond unlocking one phone. If Apple is required to help the FBI in this case, courts could require it to use this software in future investigations or order it to create new software to fit new needs. It is also theoretically possible that hackers could steal the software from the company’s servers.”
Some observers question the government’s motives. NPR’s Martin Kaste writes, “Many tech experts suspect the federal government is taking advantage of the public sentiment surrounding the San Bernardino massacre to force Apple into accepting the premise that it’s obliged to aid law enforcement even if it means creating new security weaknesses in the devices it sells.”
Will Oremus at Slate doesn’t question Apple’s motives, but he does see a potential ulterior motive along with its desire to offer users security. “You’re running a company that is on the brink of being dethroned as the world’s most valuable by its most bitter rival. Your success hinges on continuing to sell at a huge profit a device that locks customers into a lucrative software ecosystem of your own devising,” he writes. “Now say you see an opportunity to differentiate your company as the one that cares so much about its users’ privacy and security that it’s willing to go to great lengths to defend it. As it happens, you also personally believe that defending users’ privacy and security is the right thing to do. It’s not a hard choice, is it?”
The Washington Post contends that with this case, the FBI is exploring the limits of its legal powers in terrorism cases, adding, “We think that’s the wrong call. The nation should not ask the courts to strike a balance between device security and law enforcement access. The political branches of government should do that.” The paper does caution that antiterrorism tools imposed on companies like Apple could help dictators in other countries crack down on dissenters.
The Wall Street Journal proposes an “expert panel on technology and security in the modern era.” Such panels, the paper adds, “are usually a form of Beltway escapism, but in this case a detailed report and recommendations from leading minds in technology, law, computer science, police, and intelligence could help shape a rough consensus—or at least establish a common set of facts. Such a halfway house might also help calm political tempers and marginalize the absolutists.”
Presumably, marginalization of the absolutists would require some sort of backdoor mechanisms. However, the Times editorial board cautions, “Congress would do great harm by requiring such back doors. Criminals and domestic and foreign intelligence agencies could exploit such features to conduct mass surveillance and steal national and trade secrets. There’s a very good chance that such a law, intended to ease the job of law enforcement, would make private citizens, businesses and the government itself far less secure.”
