THE FBI’S ATTEMPTS TO COMPEL APPLE TO ASSIST IN EXECUTION OF LAWFULLY ISSUED WARRANT TO GET INTO THE SAN BERNADINO TERRORIST’S IPHONE
Courts, not private profit-driven corporations, should make the decision as to whether and when public safety concerns outweigh privacy concerns. Courts can apply established rules of law in making these important fact-driven decisions. This is not lawless tyranny. This is ordered liberty vindicating the rule of law.
The terrorist acts in San Bernardino are a stark example of the need for companies like Apple to cooperate with the government. The government, however, did not need this case to establish this important precedent. Existing law and court decisions established that private companies must make reasonable accommodations to allow the government to execute judicially approved search warrants issued by a judge.
For example, traditional phone wiretaps are an important and accepted tool in fighting organized crime and terrorism. The AWA was the justification for requiring telecommunication companies to develop technology, including designing software that allows law enforcement with a judicially approved warrant to intercept telecommunications. Another law, CALEA, requires that the companies continue to prospectively design and modify their equipment, facilities and services to allow government to execute wiretaps, even when technology changes.
In the aftermath of the recent San Bernardino terrorist attack, the government acted reasonably asking for an objective and detached federal judge to make to determine the reasonableness . In comparison, Apple’s opposition was a profit-driven business decision, disguised as a defense of individual privacy.
The government was requesting only that Apple write code capable of removing the feature on the iPhone that wipes the phone if a certain number of wrong passcodes is entered, on one particular iPhone. That iPhone was to have remained in the security of Apple headquarters. Apple’s publicists and lawyers, instead incorrectly claimed the government was requiring Apple to build a back door generally.
In this case, information that exists on the terrorists iPhone, and the iPhone only, could supply information regarding associates of the terrorists, modes of communication and even plans of future attacks, such as the tragedy in Brussels. Apple knows that some information exists only on the iPhone itself, and not on Apple’s iCloud servers.
[IF YOU WANT TO PROVIDE SPECIFICS] For example, iMessages, location information, third party application information and any information that was not backed up to iCloud, can only be obtained from the iPhone itself. Sophisticated terrorists know not to back up their information to Apple’s servers.
As the AWA requires, the government was reasonably offering to compensate Apple for its efforts. Apple grosses several hundreds of billions of dollars a year. Apple’s own estimates, if they are to be believed, were that the effort would take as few as six of its 100,000 employees as little as two weeks. Moreover, the burden on Apple is a direct result of Apple’s marketing decision to engineer its products so that the government, even with a lawful warrant, cannot search them.
Apple makes good products. Their improvements in making encryption automatic and user friendly should be applauded. But if we are going to remain secure from terrorists, child predators and organized crime, law enforcement must be able to obtain an effective judicially approved search warrant to search for evidence of their crimes.
FBI Director Comments on San Bernardino Matter
Washington, D.C. February 21, 2016
FBI National Press Office (202) 324-3691
The following letter from FBI Director James Comey was posted on Lawfare Blog on February 21, 2016.
The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.
The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.
Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.
So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.
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