The recent dispute between FBI and Apple pits three important principles against one another. On the one hand, it’s about the right of the U.S. government to investigate thoroughly the most deadly terrorist attack on American soil since 9/11, in order to prevent the nation and the world from future terrorists attacks. The dispute has raised questions about the need and importance of maintaining the privacy of every individual. It is also about the right of the most valuable (and iconic) American company to go about its business without the government undercutting the key promise it makes consumers — that their most private communications are kept safely under lock and key.
A federal judge’s order to help the FBI hack into the encrypted iPhone of Syed Rizwan Farook, who in December, together with his wife, killed 14 of his co-workers at a holiday party in San Bernardino, California, has been rejected by Apple. The couple carried out the attack on behalf of ISIS, although there is no evidence they did so at the direction of the group. The US Justice Department has been on the offensive, criticizing Apple for refusing to help unlock a phone used by Syed Rizwan Farook, who died after the terror attack that killed 14 people in December.
The dispute between FBI and Apple has set the stage for what promises to be one of the great commercial battles of the next years, between the U.S. government and the tech companies that are the most important engine of the booming American economy. Big tech companies argue that if it is known Apple has given the U.S. government such an access, then consumers around the world will be leery of using Apple and Google and other U.S. technology products. Thus, it could result in many tens of billions of dollars being lost and, therefore the business is at stake.
The FBI has argued for years that it faces a “going dark” problem, that its investigations of everything from child pornographers to terrorists are hampered, or even completely undercut, by the fact that so much Internet communication is now encrypted to a level that the U.S. government can’t break. As a result, the FBI wants a “backdoor” into the encrypted communications platforms engineered by American tech companies.
Federal prosecutors in a motion las week have asked a judge to compel Apple to cooperate, saying CEO Tim Cook had made it clear the company wouldn’t willingly comply with an earlier order to help unlock the phone used by Farook. “Rather than assist the effort to fully investigate a deadly terrorist attack … Apple has responded by publicly repudiating that order,” prosecutors wrote in the filing in federal court in Riverside, Calif. Apple’s resistance is “based on its concern for its business model and public brand marketing strategy,” prosecutors wrote. Apple “is not above the law.”
The motion offers a sharply worded response to Cook’s public message earlier this week, where he refused to “hack our own users and undermine decades of security advancements that protect our customers.” Cook said that providing prosecutors with software to unlock the terrorist’s iPhone would provide a “back door” to its devices. Prosecutors said Cook’s statements have been misleading and if the company complied, the government would still need a warrant to access a device and Apple would keep custody of the software.
Apple says, helping the FBI to decrypt Farook’s iPhone would give the government access to all other similar iPhones and would also lead to an unfortunate precedent in which the government could eventually access encrypted communications on any American tech platform. Google has publicly supported Apple’s position. The revelations by National Security Agency leaker Edward Snowden in 2013 about just how much U.S. tech companies had been playing footsie with the U.S. government had an effect on the firms’ bottom lines around the globe. A 2014 paper by the New America think tank estimatedthat the Snowden revelations cost U.S. tech companies billions of dollars.
Since Snowden went public, companies such as Apple and Google — two of the world’s most valuable companies — have incorporated much greater encryption into their products and have also been at pains to show that they will not go along with U.S. government demands to access their encrypted products.
According to reports, no evidence has emerged that Farook and his wife had any formal connection to a terrorist organization, and the plot involved only the couple and the alleged connivance of Marquez. What might be found on Farook’s iPhone therefore is more than likely simply only some additional details to buttress the overall account of what we know already. It’s unclear what help, if any, the contents of Farook’s phone might provide investigators. Nearly seven weeks of potential messages, texts, photos and data are missing — from Oct. 19, when Farook last uploaded his phone to iCloud, to Dec. 2, when he carried out a shooting rampage at the Inland Regional Center in San Bernardino. No evidence has surfaced so far to indicate Farook and his wife, Tashfeen Malik, were in contact with terrorists, or had received outside support, before the attack.
On one side of the debate inside the US administration were White House advisors who favored using quiet pressure to persuade Cook and other tech executives to cooperate. That approach has borne fruit, they say. Over the last year, tech companies have shut down social media accounts used by Islamic State, handed over subpoenaed material that suspects had loaded on “cloud” servers, and given other crucial help. But members of President Obama’s national security team wanted more. Together with state and federal prosecutors around the country, they viewed tech companies as making money while protecting terrorists, kidnappers, pornographers and others who use encryption to hide illegal schemes.
“In the court of public opinion, a dead terrorist whose phone might have connections to more terrorists is pretty attractive from the standpoint of prosecution, but the legal question is not made easier because of that,” Ryan Calo, an assistant law professor at the University of Washington in Seattle and an expert on privacy law, has been quoted to have said. No court has ruled on whether a tech company could be forced to find a way around its own security features, Calo said.
Balanced against that is what the tech companies lose if they are seen to be doing the bidding of the FBI — tens of billions of dollars and also the strong possibility of losing market share to other non-American tech companies, particularly software and cloud computing firms, around the world.
Although the fight between American tech companies and the FBI hunting terrorists is undeniably important, to some degree it may also be increasingly moot. ISIS’ key social media-encrypted platform is Telegram, which is engineered by a Berlin-based tech company that can simply ignore the rulings of American federal judges as well as legislation passed by the U.S. Congress.
Apple and its supporters say the dispute isn’t over the unknown contents of one phone, but about the government trying to establish a precedent that it can force a company to hack its customers’ devices. That could open floodgates for requests from local, state and federal prosecutors, they warn, and cripple customers’ confidence in Apple products, especially in lucrative overseas markets where distrust of government surveillance is higher. Apple’s advocates fear that giving in to the FBI now ultimately would help criminal hackers and authoritarian governments, which might use the software to trace secret communications of political opponents and human rights activists.