The one thing we know about privacy and data security is that we have neither. Those words are more true every day and if a federal judge gets her way, the state of privacy throughout the world is about to get a lot worse.
Apple is currently wrestling with the FBI and Department of Justice, resisting a demand to build a backdoor to its iPhone, which would expose all the information contained on the device. This is one of the most important legal questions to ever be raised in society’s unending struggle to balance public safety and personal liberty.
Whatever decision ultimately comes down in this case will send shockwaves into the future, and be essential in shaping policy and technological decisions regarding digital privacy. But in trying to understand the forces influencing this decision, it’s informative to view the situation in a historical context. While the challenges that face every era are unique, we can learn from the reactions â and sometimes overreactions â to when similar issues arose in the past.
How this all started
First some essential background on the current case:
On Dec. 2, 2015, Syed Rizwan Farook and his wife, Tashfeen Malik, killed 14 people and injured 22 others, including a police officer, in San Bernardino California at a holiday party for the County Public Health Department. Their attack was one of deadliest terrorist attacks since 9/11. The couple willfully destroyed all their hard drives and phones prior to the attack, except for Farookâs work phone, which he left in a relativeâs car.
On Feb. 16, 2016, a federal Judge in California issued an order demanding that Apple assist the FBI in the accessing data on that phone, an iPhone 5C running iOS 9. Specifically, the FBI wants Apple to disable built-in protections that lock up or erase the phone when an incorrect passcode is input too many times. With that functionality disabled, the FBI can enter every possible passcode into the phone until it unlocks. This method is aptly named “brute force” hacking.
The FBI wants Apple to disable built-in protections that lock up or erase the phone when an incorrect passcode is input too many times
This isn’t the first time the government has made such a request. Prior to the release of iOS 8 in September 2014, Apple could and did help law enforcement retrieve data from iPhones, although it successfully resisted governmental attempts that it work to actually “hack” into its own products â until now. This time the government is insisting.
The current case is different because the facts are as good as they are ever going to get. The crime is horrific, performed by a religiously motivated terrorist, the perpetrators were members of a minority group, and the phone itself was owned not by the criminal, but by his employer. The facts, law, and emotional appeal will probably never line up quite so well for a government case again.
Apple has already helped the FBI extensively with this investigation. Apple made its engineers available to law enforcement and provided information it has on its iCloud servers. Only the physical data on the phone itself, with approximately six weeksâ of information not backed up on iCloud, is what is at issue here. This work phone, with a few weeks of missing data not backed up on iCloud, is not likely to be the most important digital device associated with the crime, but it does make an excellent battleground for the FBI to push for assistance involving hacking phones generally.
If Apple has helped so much with the investigation previously, why is it resisting this request? Among other reasons, the tool to disable the disk wipe does not exist. Apple would have to build it to help the FBI access the data on the phone. Building such a tool would also fly in the face of public statements Apple and CEO Tim Cook has made about data and user privacy since the release of iOS 8 in 2014.
This isn’t about just one phone
From its court filings, the FBI believes the construction of this “backdoor” tool can be done privately, in Appleâs own labs, with unique code that will only allow it to work on Farookâs phone, and the software will never be used again. This is difficult to believe because we know Apple has received many such requests from law enforcement, including a case pending in New York to help the FBI access the phone of a man accused of drug possession â a far cry from murder and terrorism.
Apple sold more than 200 million iPhones in 2015 alone. The ability to unlock even a fraction of those would be worth millions of dollars to any number of buyers. Even if Apple can avoid the obvious problem of someone involved in the operation stealing the tool, the danger of so-called “legitimate” use is an arguably greater issue.
Apple sold more than 200 million iPhones in 2015 alone. The ability to unlock even a fraction of those would be worth millions
After Apple has complied with this type of order once, they will certainly be forced to do it again and again. Once this bell is rung, it is difficult to believe that world governments, much less the US government will be able to resist the temptation ring it again and again. Is this order valid, when constitutionally analyzed under privacy law associated with the Fourth and Ninth Amendments? If this court order is enough to force Apple to hack its own product, what stops this from happening in Russia, China, or Turkey? What of even less popular governments like Iran, Syria or North Korea? It will be difficult for Apple to pick and choose which countries have sufficient freedom and sovereignty for it to obey valid court orders with millions of customers and billions of dollars at stake in certain countries.
What makes meaningful disagreement with the court order so difficult is that the pro-surveillance side has such a powerful argument legally and factually. The FBI has a valid warrant, supported by probable cause. Farook is unquestionably guilty of despicable crimes and may have information on his phone that can lead investigators to other people that helped him commit those crimes. The data may even help prevent future crimes. If the court was asking to search a house, email, or car, this is more than sufficient. Normally, this should be unquestionably enforced. But enforcement here raises many important and far-reaching questions.
Inching toward the slippery slope
The core privacy issue is this: What should the law require? Is this judicial order enough to force Apple to provide access to an encrypted phone? Putting aside North Korea, Russia, or even early 20th-century Germany, we do not have to look outside of our borders to see that governmental and judicial validation is not always enough in the final moral analysis. Abuses of power are a frequent consequence of real or perceived threats to domestic and national security.
The historical evidence is clear: When faced with a threat that qualifies as âspecial circumstances,â our government abuses power
Just last year, the European Court of Justice invalidated the EU-US Safe Harbor framework for personal data transfer because of privacy and surveillance abuses. We know the NSA was and likely still is monitoring email traffic, among other forms of communication, via its PRISM surveillance program, which Google and other Internet companies cooperated with. We know the U.S. has tortured and imprisoned people without trial in Guantanamo Bay. In the 1950âs McCarthy, Hoover, and the FBI imprisoned hundreds and had more than ten thousand others fired from their jobs after uncovering potential Communist connections. This month, 74 years ago in 1942, Franklin Delano Roosevelt signed Executive Order 9066 leading to the imprisonment of hundreds of thousands of Japanese in concentration camps, including American citizens and the wives of U.S. servicemen.
The historical evidence is clear: When faced with a threat that qualifies as âspecial circumstances,â our government abuses power, and privacy and liberty are the first things to go. We have seen time and again that, after a certain point, the government may not be trusted with unchecked power. It fails to provide proper constitutional limitations, and those failures are only evident years later. We have seen the government strain to justify abuses or keep the abuses secret. When secret abuses are discovered, they will deny those abuses until the stream of facts make denial impossible.
Why the stakes are so high this time
Beyond governmental overrreach, we should also consider the smartphone is a special, if not unique object in our history. It is not the simplistic âpersons, houses, papers, and effectsâ that was to be protected from unreasonable search and seizure contemplated by the Fourth Amendment.
A single device, weighing just a few ounces, carries thousands of photos attached to location information, voice and video call information, text messages, email, music, countless software application possibilities, geolocation data, and a constant, always-on network connection… to literally all human information. Such a “magical” device would have been inconceivable to the Founding Fathers. Given the balance of harm granting unfettered access to this, it may well be worth considering for protection even beyond the Fourth Amendment.
Beyond the complexity of properly pondering the smartphone technological miracle, there are two genuinely difficult elements to this problem. First, people are going to die. This is not an idle philosophical consideration, marketing event or political problem. If Apple successfully resists the hacking mandate, the phone becomes an even safer place than before to plot crimes, including terrorist attacks. Evildoers around the world will confidently use this powerful device to make carrying out their nefarious plans easier.
Reasonable people could side with either the government or Apple. However, we cannot ignore the problem, deny its importance, or pretend there is a middle ground
Second, if Apple assists in hacking the phone, it wonât be the last time they are asked to do it. Some government, somewhere in the world, will abuse this power â and our own government isn’t above the temptation.
Given the data a smartphone holds, this will lead to a level of global surveillance beyond anything known in human history. The seminal science-fiction writer Phillip K. Dick described what such a society would look like in his novel Flow My Tears, the Policeman Said: “You will be electronicallymonitored wherever you go. You will never be alone except for your own thoughtsin your own mind and perhaps not even there.”
Reasonable people could side with either the government or Apple on this issue, and there are good reasons to take either position. However, we cannot ignore the problem, deny its importance, or pretend there is a middle ground. At the end of the day, the government will either force Apple â and by extension any and all other phone manufacturers â to help hack the smartphone, or they wonât.
Personally, I hope the government is unsuccessful it in its bid to force Apple to aid in hacking the iPhone even with the negative consequences that follow from that decision. If we have learned anything from Snowden, Assange and Guantanamo, the innocent as well as the guilty will be subjected to the consequences of this decision â and some of them wonât live through it.
PRISM, McCarthyism, and Japanese internment camps were the results of governmental unfettered access to much less sophisticated technology. The power and potential for abuse are genuinely, without hyperbole, incalculable. Having nothing to hide is a luxury that very few people, even good people, can afford, and having nowhere to hide is the definition of a police state.
A finding in favor of Apple would certainly be inconvenient for law enforcement. But as Jefferson once said, âI would rather be exposed to the inconveniences attending too much liberty, than those attending too small a degree of it.â
S. Gregory Boyd is an attorney and Chair of the Privacy & Data Security Group at Frankfurt Kurnit. He has advised Mashable on privacy, technology and intellectual property matters for many years.
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