The radical Islamic terrorists in San Bernardino destroyed most of their phones before murdering people who had once thrown them a baby shower. One of the work phones, however, was recovered. The FBI understandably wants access to the phone to retrieve its data.
Just one problem: The phone is encrypted. Apple now encrypts their phones and only the user knows the passcode. After ten failed attempts the phone’s data is erased completely, ruling out a brute force attack where a computer simply tries every single 4 digit code until the phone unlocks.
If this was a safe, the FBI could demand the combination because it would be something in Apple’s possession. However, the latest court order doesn’t order Apple to turn over something it has, but rather to invent something that currently does not exist in order to access a phone protected by a passcode created by a user. In theory, law enforcement could use the dead terrorist’s finger unlock the phone with the thumbprint function, but this phone was secured by a code.
It isn’t just this phone for only this case. The FBI may claim it just wants Apple to create software for this investigation, but once Apple does that it will be asked again and again under other circumstances. According to Apple, law enforcement agents around the nation are waiting in line to have Apple unlock phones if the FBI prevails in this particular controversy. Future cases will be the much more routine drug cases, not the relatively rare terrorism incidents being discussed.
One key element of the current conversation assumes that at no point will law enforcement be in possession of the software: That Apple will take the phone, create the special software, and hand a phone back to the FBI so the agency can hack the device and everyone will be happy.
Nonsense. While this may work in this particular, narrow circumstance, the handing over of a device to a third party presumably renders the chain of custody tainted. Any evidence in a criminal case must be shown to have chain of custody integrity or it is vulnerable to be thrown out by a judge.
This means that once Apple agrees to invent code for one phone, the next demand will likely be for them to do so by giving the FBI a master key for all phones on the planet. In most cases, they will justify this master key so as to preserve for the FBI or other law enforcement the chain of custody for evidence in a prosecution. As Leonardo da Vinci once said, “It is easier to resist at the beginning than at the end”.
One suspects this is exactly what Apple is thinking in this case. In fact, Apple asserts that the court in this case is asking “for something we simply do not have, and something we consider too dangerous to create.”
But once again we seem to be discussing the civil liberties of 320 million Americans while ignoring a more sensible approach: enforcing the immigration laws already on the books. Think of it this way: America lost 3,000 people on 9/11 and have endured TSA patdowns, NSA snooping, and other erosions to freedom as a result and at a cost of billions of dollars. Or we could have simply enforced our immigration laws against the 19 hijackers prior to the attacks. For reasons that are not yet clear, our society seems obsessed with weighing security against our liberty rather than focusing on enforcing immigration laws that can make us more secure without ever needing to touch the civil liberties of American citizens.
I often hear people ask that since they don’t do anything illegal and have nothing to hide, why not let the government have whatever it wants? Perhaps you do not have anything to hide, but then again neither did Ann Frank who nonetheless ended up going into hiding. Nor did the Japanese Americans sent to internment camps based solely on their ethnicity have anything to hide when they were completing their government mandated census records.
Apple is working on security improvements that would make it impossible for the government to hack into an iPhone. This would also mean customers would lose their data if they forgot their password, an aspect about which Apple is cautious and why their iCloud service is not yet encrypted. However, it shows that Apple understands this case is much more than a single terrorism case. At the heart of this controversy is the hard question: Should we trust the government to do the right thing in preserving our rights? This brings to mind the wise warning of Holman Jenkins: The one thing the state has no interest in using is the law to restrain is itself. Whose side do you think the government will be on – theirs or ours?
Michael James Barton is the founder of a consulting firm, Hyatt Solutions. He worked on trade issues on Capitol Hill and served at the Department of Defense and the Homeland Security Council during the George W. Bush administration. He can be reached at Scheduling@HyattSolutions.com and you can follow him on Twitter at @MichaelJames357.