Apple vs. the FBI

Posted on 2016 March 6

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Numerous governments are going to come a-calling for their bite of the apple. Once it’s created, you can’t unwrite that code. — Nuala O’Connor

First there was Edward Snowden, who blew the whistle on the U.S. government’s wholesale spying on American phones. Then we learned hackers were invading our digital lives and stealing our identities. Then came the data breaches: Target, Home Depot, Sony. And on and on.

Apple Inc., maker of the iPhone — a product used by hundreds of millions of people worldwide — responded to the security threat by creating an encryption system for its mobile phones that the company itself couldn’t break. People flocked to the safer product. Apple amassed record profits.

Late in 2015 a Muslim militant couple shot up a holiday party in San Bernardino, got themselves killed, and left behind their small child … and an encrypted iPhone. The FBI wanted to break into that phone to learn more about the couple and possible future attacks against U.S. targets. A warrant was duly issued. 

Apple tried to help, providing the FBI with data the couple had deposited at its iCloud web storage service. But the phone was indecipherable by design. So the FBI got a court order to force Apple to break into the phone. Apple balked: to do it, they’d have to launch a crash program involving dozens of people, handfuls of test phones, and at least several weeks of time. They’d be performing the government’s work for them under duress, and they’d destroy one of the most important features of the products they sell.

But the FBI wanted that phone’s data! They swore they were only after that one handset. Besides, America lived under constant threat of attack from Islamic extremists: any and every bit of intelligence the government could acquire might help them prevent such catastrophes. What could possibly be wrong with that? 

Let us count the ways:

  • Once the FBI had a decryption key for that single phone, they would almost certainly share it with other federal agencies, who, in turn, would likely share it with local law enforcement. Meanwhile, millions of outside dollars would be offered as bribes to persuade people on the decryption project to reveal the key. One or two of the dozens of phones that Apple hacked during testing might “get lost” and the decryption reverse engineered by baddies. Eventually, hackers everywhere, including foreign powers at odds with the U.S. — Russia, China, Iran, ISIS — would be able to crack most any iPhone. The danger to American security, public and private, would be severe.
  • Though the FBI claims it merely wants to break into this one device, in fact it has sought warrants on eleven phones in recent months. An FBI success in this case would lead to an indefinite number of warrants on cellphones, effectively halting the quest for robust telephonic security in America.
  • The intelligence price for the FBI’s access to that one phone would be the potential theft, by U.S. opponents, of classified data from thousands of American iPhones. This includes devices used by the White House, Defense Department, and State Department, not to mention military contractors doing secret work. U.S. law enforcement and intelligence agencies would thus sacrifice vastly more data to its enemies than they might find on the single phone in question. 
  • Once the iPhone was decrypted, America’s high-tech superiority would suffer a blow. Other nations’ companies would rush to fill in the gap, and billions in sales would be lost to them.
  • A decrypted iPhone would damage Apple’s prestige, and its sales and revenues would likely plummet. A jewel in America’s industrial crown, Apple would be tarnished … or tumble from its setting.
  • The legal assault on Apple threatens the spirit and letter of the U.S. Bill of Rights, especially the Fourth Amendment against unreasonable searches and seizures, the Fifth Amendment against self-incrimination and lack of due process, and the First Amendment against restrictions on speech. (Who will want to talk or text privately over a phone that can be decrypted at any time by the government?)

“But we must know everything we can about the enemy!”

  1. Much or most of the data the FBI seeks is readily available at the NSA, which still collects everyone’s cellphone “metadata” — call time, call length, location of caller, location of receiver, text messages, etc. (A subpoena on the NSA, however, would remind the public about all that spying.) 
  2. Eventually, a catastrophic enemy attack is almost certain to occur. No amount of intelligence gathering can insure the country one hundred percent against such an event. It’s better to spend extra effort on disaster preparedness rather than chase obsessively every last tiny detail at the expense of American civil liberties.
  3. The government has a history of mishandling intelligence. The 9-11 disaster might not have occurred had the FBI and CIA acted on the information it already possessed about the plotters. Better coordination between departments, and better use of data, is more important than decrypting one more phone.
  4. The FBI may have a long game in play: it can fight and lose the legal battle against Apple; then, if an attack occurs, the director can assert that his agents were hobbled by the courts. Their jobs, at least, will be safe.

The case against Apple highlights the perennial contest between two chief purposes of American government — that it protect its citizens from attack, and that it protect them from its own tendency to interfere in their lives. The Constitution was written specifically to hobble federal enforcement agencies, lest they become too enthusiastic in their duties and ruin the very country they’re sworn to protect.

Author David Brin has asserted that Americans don’t want either safety or liberty, but both at once. In an ever-changing world, we need solutions that reinforce this as a policy that’s not threatened by every new development. 

An acquaintance remarked, “I’m sixty-forty for Apple.” When in doubt, it’s wise to lean toward the side of freedom. Or what’s America for?

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UPDATE: Decrypted iPhone would aid dictators — U.N.

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Posted in: Politics