The San Bernardino shooting(7) was the deadliest terrorist attack to occur in the US since the September 11 attacks. To aid with their investigation, the FBI required Apple to hack an iPhone recovered from the scene, doing so could potentially compromise the data security of its consumers. What decision should Apple make given that this is a matter of national security? Should Apple yield to the FBI’s demands and undermine the trust in the security of their own products?
For Apple hacking their iPhones
The mass shooting that occurred at San Bernardino, California and was carried out by home-grown extremists claimed the lives of 14 American citizens. While investigating the incident, the FBI recovered an iPhone from Syed Rizwan Farook(1), one of the perpetrators. In this age that we live in where almost everyone has a digital footprint, the FBI were confident that valuable information could be gathered from contents of the phone. However to access it they needed Apple’s help to hack the phone. Apple rejected the FBI issued warrant arguing that the government was effectively asking them to create a backdoor in their operating system which would ultimately make all iPhones vulnerable to hacking should the tool be acquired by criminals. Various other tech companies(8) have sided with Apple citing a breach of the civil rights of the product consumers as a reason for their support.
Apple’s decision has violated the All Writs Act(2), which the US Congress passed in courts as a means of ensuring that their lawful warrants would not be frustrated by third parties like Apple. This was created as a reasonable solution to Apple’s decision to engineer its products so that the government cannot search them without a warrant from the Supreme Court(1). The government also argues that the invocation of the All Writs Act is not intended to set a legal precedent but does help in the protection of national security; although most Americans are concerned by the anonymous gathering of personal information(3), we argue that the case in question is not comparable to the surveillance of ordinary citizens as Farook was acting to serve against the ‘common good’ by compromising public safety and security(6).
The government has outlined a set of restrictions governing the methodology used to gather information from the iPhone, ensuring that an unlawful infringement of the Fourth Amendment does not occur. Farook has also consented to the carrying out of the search as part of his employment agreement with the County(2). This court order counteracts Apple’s claim that the modified OS would serve as a backdoor to unlock all iPhones, as it ensures the use of the modified OS is limited to the phone connected to this incident; furthermore the analysis would be carried out at a location of Apple’s choice under the strict guidance of Apple employees to ensure no public phones were targeted.
We believe that Apple should accept the terms of the warrant and allow the FBI to gather information from Farook’s iPhone. Despite claims that the modified OS could serve as a means of hacking into any iPhone for the purpose of general public surveillance, the US government has taken steps to ensure that the modified OS would only be used specifically for this case and subsequent similar cases.
Against Apple hacking their iPhones
In this post-Snowden era that the US exists in, polls have found that most Americans are concerned(3) that their information is being accessed without their knowledge. This has led the marketing of most tech companies like Apple, Google and Microsoft to be aligned with the public’s perception of government surveillance. The FBI however tried to force Apple to hack an iPhone recovered from the shootout scene at San Bernardino with an unprecedented use of the All Writs Act(1). Apple’s predictable reluctance to hack the phone has been explained by numerous commentators(4) as a public brand marketing strategy. However this distracts from the real problems that could arise should Apple be forced to hack their own phone.
Due to the encryption software that rolled out with versions of iOS 8 in September 2014, Apple has said that hacking a single iPhone to creating a master key, which could hack any iPhone. In effect, the FBI is asking Apple to compromise the security of all its customers, but isn’t that too high a price to pay? The scope of the legal precedent set should this proposed action be carried out is unimaginable. Due to its blatant infringement on the public’s privacy, the constitutionality of the All Writs Act would be questioned. A judge in a similar case particularly highlights the absurdity of the government’s interpretation of the All Writs Act concluding(5) that had the court accepted the government’s position it would have transformed the All Writs Act from a limited gap-filling statute to an overpowered legislation limited only by the Congress.
The government argues that its invocation of the All Writs Act is not intended to set a legal precedent. Should we choose to believe the government, this doesn’t negate the fact that from the government filings, they seem to acknowledge that the order they are requesting is about much more than gaining access to a single phone. Rather, it wants to ensure it can maintain access to any phone. Permitting this situation, allows the government to play God, leaving them to decide which information is worth hacking for. This unsupervised access to otherwise confidential data can lead to an abuse of the power they hold.
Although hacking the iPhone could very well lead to the discovery of very valuable information that could help with the war on terror, we do not think the privacy of hundreds of millions of iPhone customers is a suitable price to pay. So should the FBI look for alternative solutions to help further their investigations? That said, I leave you with this quote;
“They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety”
– Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin.
Should Apple hack the phones but deny it in public to preserve their public image? Should the FBI go to Congress to get a favourable legislation approved rather than abuse an essential statute in the US constitution? Should Apple reject the FBI’s order and risk being called terrorist sympathisers? Should Apple accept the order and gamble on the legal precedent set? Should we be worried that the government might know the kind of music we are listening to?
68: Adam Murphy, Obafemi Faluyi, Deji Adepetun, Roland Mbanefo