When Syed Farook and Tashfeen Malik died in a hail of
gunfire last December 2 after killing 14 people at a San Bernardino office
party, the FBI recovered Farook's iPhone within a few hours. One of the critical unanswered
questions about the San Bernardino shootings is whether the couple had outside
help, and the data on the iPhone may hold the answer. Problem is, the FBI can't get at the data, and Apple, the
iPhone's maker, won't help them.
Why not? Let's
let Tim Cook, CEO of Apple, answer that one: "[T]he U.S. government has asked us for something we
simply do not have, and something we consider too dangerous to create. They
have asked us to build a backdoor to the iPhone." A little historical perspective is in
order to put this situation into context.
With the advent of powerful digital computers, advanced
encryption algorithms were designed and adopted by both sides of the Cold War
(both the U. S. and the Soviet Union) for secret communications in the 1970s
and onward. The U. S. National
Security Agency, long used to spying on analog communications in which good
radios were the most elaborate equipment needed, found itself behind the
technology curve and spent millions on advanced computing technology to
maintain its ability to crack enemy codes. The computing power of those early NSA computers now resides
on your smartphone, and after a run-in with NSA a few years ago involving
spying on Apple, the tech company and its president resolved to do a better job
than ever in protecting its customers' privacy. The latest iPhone operating system has a feature that not
only encrypts the user's private data, but destroys the internal encryption key
if it detects more than 10 attempts to unlock the phone using the 4-digit
password. After that happens,
nobody but God can retrieve the data.
At first the FBI was hoping that the phone was backed up to
the iCloud, where the data might be recovered. But it turns out that the automatic backup feature was
turned off last October, possibly by Farook to avoid just such snooping. After trying everything they could
think of, including things Apple suggested, the FBI has asked Apple to do
something that the firm claims is unprecedented.
The FBI wants Apple to write a new operating system for
Farook's phone that will allow unlimited password tries electronically, which
will allow the FBI to access the phone's data. They say it will only be used on Farook's phone, and so
there is no risk to anybody else's phone.
The FBI has put this request in the form of a court order, and Tim Cook
has vowed to fight it.
Why? Apple
claims the risks of that system getting loose, either accidentally or by
command, are simply too great, and they have dug in their heels. For example, it has been suggested that
once it becomes generally known that Apple has developed such a backdoor,
repressive regimes will order the firm to give it to them, or else kick Apple
out of the country.
This is not the first time that Apple and the federal
government have been at loggerheads over encrypted data. In a 2014 case, Apple was ordered to
extract data from an iPhone, but it is not immediately clear from the record
whether they complied. In both
that case and the San Bernardino situation, the FBI cited as its authority the
All Writs Act of 1789, which basically lets courts issue writs (orders) "necessary
or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law."
To the ears of this non-lawyer, it sounds like the law basically says
you can do whatever you want, but the Act is typically hauled out as a kind of
last resort, as subsequent case law has erected a set of four conditions that
must be fulfilled before a court can issue an order under the Act. Of course, the FBI thinks the
conditions are fulfilled, and Apple doesn't.
Apple's stand is based on the idea, not that common among
high-tech companies, that even Apple doesn't have any business with your
personal data, which is why they designed the iPhone operating system to be so
hard to crack. This differs from
practices of other firms, who happily mine their customers' private data for
commercially valuable things like brand names and so on. Privacy advocates from across the
political spectrum have joined Cook in his opposition to the order, and the
outcome of this case could have wide implications not only for the FBI and
smartphones, but for digital privacy generally.
National Review
commentator Kevin Williamson (from whose column I first learned about this
matter) takes the view that the FBI is taking the easy way out by simply ordering
Apple to do its job. There is
evidence to support this claim. For
example, in its instructions to Apple, the FBI asked them to rig a bluetooth
link to the phone so they could try the 9999 different number combinations
electronically, instead of having to make somebody sit there and do it by
hand. This apparently minor detail
has the aroma of a royal order to underlings—"and while you're at it, fix
it so I don't mess up my manicure wearing my fingers out on that touchscreen of
yours." Back in the days of
telephone hacking in the 1960s, teenagers with time on their hands would amuse
themselves by dialing all 9999 numbers in a given 3-digit telephone exchange
(e. g. 292-0000 to 292-9999) just for the thrill of discovering the test and
supervisory numbers the phone company used for long-distance routing and
maintenance. Apparently, the FBI
can't be bothered with such tedium.
The matter is in the hands of lawyers now, and if the issue
does indeed go all the way to the Supreme Court, its fate may well depend on
whether President Obama gets to appoint a new member after Justice Scalia's
recent demise, or whether the next president does, or whether a split Court
ends up doing nothing (split decisions leave the lower court's decision
standing). Whatever happens, I
admire Tim Cook for taking a principled and consistent stand for a cause that
he could so easily abandon: the
notion that privacy still means something in a digital age.
Sources: Kevin Williamson's column
"Hurray for Tim Cook" can be found at National Review Online at http://www.nationalreview.com/article/431491/apples-tim-cook-right-resist-governments-demand.
I referred to articles by ABC News
reporter Jack Date carried on Feb. 19, 2016 at http://abcnews.go.com/US/san-bernardino-shooters-apple-id-passcode-changed-government/story?id=37066070
and Feb. 17 at http://abcnews.go.com/US/fbi-iphone-apples-security-features-locked-investigators/story?id=36995221. I also referred to an article in The Guardian online at http://www.theguardian.com/technology/2016/feb/19/apple-fbi-privacy-encryption-fight-san-bernardino-shooting-syed-farook-iphone,
and Wikipedia articles on encryption software and the All Writs Act of 1789.
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