Strategic Failure

Why Apple must lose its current battle against the FBI so we can all win the war against privacy violations

The Snowden revelations taught us to abhor unconstitutional searches and applaud those searches that are in accordance with the Constitution and the rule of law. What the FBI wants to do with the San Bernardino shooter’s work-provided iPhone 5C is the latter: conduct a (somewhat, given the shooters had destroyed their personal phones, the calling, texting, and GPS records of which could be gathered via existing data-sharing schemes with telecoms) reasonable search as allowed by the Constitution.

The FBI is not proposing that Apple construct a back door within the encrypted iOS 9 software. It is instead asking Apple to create a special fork of iOS, specifically signed to this individual suspect’s phone, which would 1) eliminate its ability to self-destruct after 10 incorrect password attempts, 2) allow the FBI to enter passwords electronically, and 3) reduce the time in between password attempts from 5 seconds to 80 milliseconds. This would allow the FBI to conduct a swift and efficient brute force attack on the phone’s password. Such a modified version of iOS would not weaken the encryption methods that comprise public versions of iOS, nor would the modified iOS be owned or under the control of anyone but Apple. Moreover, such a fork of iOS would need to be re-signed for each new phone that the government seeks to gain access to. That is to say, the government, even if it was able to somehow retain a copy of this special fork of iOS, would not be able to reuse it on other phones without Apple’s express permission.

This is what we want. We want privacy through encrypted communications and devices. We want the government to only be allowed to see into those communications and devices in extraordinary circumstances, with a court order, in accordance with the rule of law and the Constitution. This is what the FBI is proposing.

The potential inability of the FBI to engage in reasonable, lawful searches in this manner will only further push it and similar agencies towards the types of unconstitutional surveillance methods that we have come to detest post-Snowden. It will also incentivize Congress to pass legislation mandating true backdoors in methods of encryption developed by American corporations moving forward, making us both less secure and less competitive on a global stage.

Such a balance creates potential peril in foreign jurisdictions, especially China. However, as an American, considering the balance of interests at play, I believe siding with the FBI here is the most prudent option at the moment. This is but one of many battles in a long war to defend individual privacy.

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