Apple vs. the FBI: Who’s Right?

When it was published back in 1949, George Orwell’s Nineteen Eighty-Four predicted with almost preternatural accuracy the coming war between privacy and security. It foretold a future (taking place in a then-far-off 1984) where the citizenry of the United States had effectively sacrificed dominion over their lives and even their minds, all in the name of public safety.

The titular year 1984 has come and gone, but we find ourselves, in the year 2016, in the unenviable position of admitting that Orwell was right. The decision before us now really is just as black and white as he foretold. We can have liberty or we can security, but it seems unlikely that we can have both — at least, not yet.

Just days ago, Apple, Inc. published an open letter to their customers. It’s a lengthy and impassioned response to a recent battery of FBI requests that Apple effectively “open a backdoor” into the encryption that protects their customers’ iPhones from unwanted (and in this case unwarranted) intrusion. This pressure has been going on for some time now, not just with Apple but with all of the leading consumer technology companies as well.

What makes this particular case so newsworthy is the fact that the iPhone in question belonged to one of the late perpetrators of the shooting in San Bernardino, California. Syed Rizwan Farook left the iPhone behind when he and his wife, Tashfeen Malik, opened fire at the Inland Regional Center. The couple died in the ensuing firefight.

Although tech wonks and civil rights activists are falling in line behind Apple, the debate is not quite as cut-and-dry as we might like. Let’s take a look at this complicated case so that we can better understand why Apple is in the right.

Does the FBI Have a Case?

The FBI is claiming that Apple’s refusal to assist in this particular investigation sets a dangerous precedent — one that may permanently hamper official investigations into terrorism and other activities that threaten the public’s well-being.

It’s true that the Constitution grants us certain protections, but caveats and exceptions have always existed. For example: While the Constitution does indeed grant us the right to “keep and bear arms,” the emerging consensus demands that we put common-sense restrictions in place concerning which types of arms we have a right to, and which types of people can buy them in the first place. We must take into account the fact that technology has advanced by two hundred years since that Amendment was drafted.

Just as the FBI argues, American citizens must waive their right to privacy from time to time in the interest of national security. After all, says The Guardian’s Nellie Bowles, most of us have already waived our right to privacy by installing Amazon Echos and Samsung Smart TVs in our living room, enabling “OK Google” on our handsets, flooding Facebook with personally identifying information and letting every analytics tracker under the sun collect reams of data on our Internet habits. What’s the point, goes this line of thinking, in standing up to the FBI in the name of privacy if privacy no longer exists? In other words, why make a fuss about surrendering our liberties if it’s done for a good cause? In this case, that “good cause” is national security.

I don’t buy this argument, and you probably don’t either. Americans are no strangers to privacy infringement, but we’re getting better all the time at protecting ourselves from this kind of intrusion by buying certain phones, installing certain browser add-ons and building or subscribing to virtual private networks (VPNs). Shrugging our shoulders and letting the FBI stick its fingers where they don’t belong seems like a gigantic step backwards.

Does Apple Have a Case?

The Constitution guarantees in no uncertain terms that American citizens are free from “unreasonable search and seizure.” Although Syed Rizwan Farook is dead and no longer in particular need of this or any other civil rights guarantees, the process whereby his iPhone could be opened up to scrutiny could just as easily be used to undermine the encryption in millions of other law-abiding citizens’ phones, and by extension their entire digital lives.

Categorical mistrust of the government is childish, but healthy skepticism is not. There are, at this time, no binding federal laws that would stop unscrupulous or careless employees of the FBI and other investigative government branches from abusing this power.

The Patriot Act, along with its modern (and much more worrying) counterparts like CISA, CISPA and PCNA, was enthusiastically shepherded through Congress by overzealous (and mostly Republican) “security hawks.” But these acts not been well received by more liberal and progressive elements in the general assembly, to say nothing of security-minded consumers. The bills grant sweeping and unprecedented powers to the Federal government to collect and store personal information on every American citizen. It’s as though they read Nineteen Eighty-Four and instead of seeing it as the cautionary tale it is, are using it as a guidebook.

Apple has the backing of the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF) and Amnesty International now that they’ve drawn a line in the sand on behalf of their customers’ privacy and security. Said Alex ABdo, ACLU attorney:

“This is an unprecedented, unwise, and unlawful move by the government. The Constitution does not permit the government to force companies to hack into their customers’ devices. Apple is free to offer a phone that stores information securely, and it must remain so if customers are to retain any control over their private data.”

More worrying even than the civil rights argument is Apple’s assertion that, if granted, access to just this single iPhone would be like giving the government a “skeleton key” that would put millions of Americans at risk from the very abuses the Constitution (ostensibly) protects them from.

And, as if we needed further ammunition against the FBI’s overreach, Edward Snowden (a patriot by just about any definition) had this to say on Twitter: “The FBI is creating a world where citizens rely on Apply to defend their rights, rather than the other way around.”

The bottom line here: Apple does not currently have the means to access anyone’s iPhone in this way. The technology does not exist. What the FBI is asking for is the creation of a variant of iOS, the operating system that powers the iPhone, that would deliberately cripple its encryption protocols. The same technology could then be used on any other iPhone in the world. This, folks, is the very definition of “slippery slope.”

Is There an Alternative?

It turns out this whole argument might be moot anyway. As Thomas Fox-Brewster points out, the FBI could rather easily use dead suspects’ fingerprints to gain access to the iPhones they leave behind. The San Bernardino shooter did not have Touch ID enabled at the time of his death, but the move toward biometrics means the search for a brute force method (i.e. trying thousands of different password combinations) might not be necessary for much longer. Assuming there’s a body left behind to work with, investigators could use the perpetrator’s fingerprint to unlock his or her device.

Nevertheless, the strongest argument to be made here — and the one most likely to hold up when this case inevitably reaches the Supreme Court — is that citizens of the United States are guaranteed certain rights, privacy being chief among them. This is the hill on which we make our stand, and we should be grateful that Apple (along with tepid support from Google and Microsoft) are around to stand up for us.

Holly Whitman is a political writer and journalist, originally from the UK but now based in Washington DC. Want these posts delivered straight to your inbox every week? Sign up to the weekly newsletter.
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