Apple v. FBI
Alan Butler
February 29, 2016
By now, you have probably heard many different opinions about a federal
court order requiring Apple to help the FBI decrypt an iPhone used by one
of the San Bernardino shooters. After the order was issued on Feb. 16th,
Apple CEO Tim Cook explained that the company would challenge the
court’s order because it would establish a “dangerous precedent” and
weaken the security of Apple devices.
A few days later, FBI Director James Comey replied, saying that the case
was only about a “narrow” issue — accessing the iPhone in San Bernardino.
But, not long after, Manhattan District Attorney Cyrus Vance acknowledged
in an interview that if the court orders Apple to provide assistance in San
Bernardino, he will request assistance in unlocking at least 175 iPhones
obtained in a wide range of cases. Apple subsequently told a court in New
York that the FBI is asking for similar orders in 12 other cases.
This case is not an isolated incident, and what happens with it matters for all
Americans — not just Apple and its customers. It may seem like there isn’t
much downside to Apple assisting the FBI in the San Bernardino
investigation, but that is not true for at least two reasons.
First, what the Court in the San Bernardino case ordered Apple to do would
impact the security of all iPhones. Apple would be required to create special
software — an “FBiOS,” so to speak—that would disable key security
features in the iPhone. Those security features are there to protect iPhone
users from theft and abuse, and law enforcement officers know this; that is
why they encourage users to upgrade and secure phones by enabling
encryption. Smartphone theft is a pervasive problem — millions of devices
are snatched each year — that is only getting worse.
But a recent study found that iPhone theft declined sharply after security
features were introduced. Cellphones contain a wealth of personal
information — private messages, financial and health records, photos and
more — that make them attractive targets for criminals. In fact, cellphones
hold so much sensitive data that in 2014 the U.S. Supreme Court granted
them special protection under the Fourth Amendment, finding that even
when a phone is taken during a lawful arrest, officers must get a separate
warrant to search it. If Apple is required to weaken its security protections,
these important interests will be irreparably harmed.
Second, if the court order is upheld, it will set a dangerous precedent, not
only for future FBI cases involving iPhones, but also for other cases in
which investigators want to create security loopholes in “smart” devices.
And this is not limited to the United States. If a U.S. court can order Apple
to weaken the security of its devices, then how would Apple refuse a similar
order from a court in China or Russia? If Apple is forced to create this
security loophole, then why wouldn’t other phone and computer
manufacturers also be required to create loopholes? We rely on companies to
build and maintain secure software to protect our data. If Apple is forced to
compromise the security of its devices, the trust will be broken and private
data will be compromised.
Given the high cost — compromised security and an inability to trust our
devices — is it really worth it to help unlock data that might never be used
in a criminal case?
The FBI will continue to pursue investigations no matter what the court
decides. But it is up to Americans to stand up for the security of devices we
use every day. We shouldn’t trade away our security for a slim chance of
finding evidence.
Alan Butler is Senior Counsel at the Electronic Privacy Information Center
(EPIC). In addition, he serves as co-chair of the Section’s Privacy &
Information Protection Committee.
Disclaimer: Apple has filed a motion challenging the court order in the San Bernardino
case, arguing that it violates the law and the Constitution. My organization, the Electronic
Privacy Information Center (EPIC), will be filing a “friend of the court” brief in support
of Apple’s motion. This post was adopted from an opinion piece that was originally
published
by
Newsday
on
February
29,
2016,
available
at
http://www.newsday.com/opinion/if-apple-loses-bid-privacy-goodbye-1.11514555.