In a Nutshell: The FBI Seeks Information to Thwart Terrorists-Apple CEO Tim Cook Says ‘No’
How is it possible to balance the protection of society from terrorism and crime with the need for conservation of civil liberties?
Tim Cook, CEO of Apple stated, “The U.S. Government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.”
Prosecutor’s responded that (via this court order) they have only requested access to specific phones—the iPhones used by suspected terrorists Syed Farook and his wife, Tashfeen Malik. In December, 2015, it was reported that the FBI is officially investigating the deadly San Bernardino shooting as an “act of terrorism” after it was determined the couple had methodically planned the attack.
In addition to destroyed hard drives, FBI investigators found two broken cell phones that they believe indicate Farook and Malik were attempting to cover their tracks by destroying evidence. According to ABC News, FBI Assistant Director David Bowdich in early December asserted:
“We have retained those cellphones and we do continue to exploit the data from the cellphones. We do hope that the digital fingerprints that were left by these two individuals will take us towards their motivation. That evidence is incredibly important.”
Farook and Malik went on a deadly rampage killing 14 and injuring 21 people before being killed in a shootout with law enforcement officers. ABC news reported that in the hours leading up to the killing spree Malik, using an alias on a social media site, pledged allegiance to ISIS leader Abu Bakr al-Bahdadi. Officials require access to the iPhones in order to identify possible links between the San Bernardino shooters and terrorist networks; and to learn as much as they can about how those networks operate.
In addition to the destroyed digital equipment, police found an arsenal of a dozen pipe bombs and more than 4,500 rounds of ammunition at the couple’s Redlands, California, home, in addition to 1,600 rounds that were found in the couple’s rental car after their fatal face-off with police.
Bill Gates Weighs In
NBC news reported that when interviewed on Bloomberg TV, Bill Gates took a more middle of the road stance [as compared to Tim Cook] regarding the government’s need and right to access digital data in order to protect against escalating acts of terrorism:
“I do believe that with the right safeguards, there are cases where the government, on our behalf — like stopping terrorism, which could get worse in the future — that [having access to digital data] is valuable, but striking that balance — clearly the government’s taken information historically and used it in ways that we didn’t expect, going all the way back say to the FBI under J. Edgar Hoover…So I’m hoping now we can have the discussion. I do believe there are sets of safeguards where the government shouldn’t have to be completely blind.”
Who Wants What?
It appears that Tim Cook is worried that once Apple creates the software to hack iPhone passwords, Apple runs the risk of losing control of that software to hackers, or perhaps to the US government; so considers it to be too dangerous to create. Tim Cook wrote:
“The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”
Further, Apple asserts that programming code is equivalent to speech and thus contends the court order compelling them to create code violates the First Amendment.
The FBI wants access to the data on at least one and perhaps two iPhones that were owned and used by suspected terrorists…to learn more about potential terrorist cells that were, and perhaps are operating on US soil. Lance James, a cybersecurity expert and chief scientist at NBC News Partner-Flashpoint, wrote in an email:
“It was a reasonable search warrant request no different than a warrant to the free webmail services or Facebook asking for data. You’re not giving them your keys to all your data, you’re only giving them the very specific data of the account that was requested. Forensically speaking and legally speaking, the judge asked for reasonable assistance on unlocking this specific phone, even if that requires them to modify the firmware with a key they have, they don’t have to give that software to the FBI.”
US Magistrate Judge Sheri Pym, the judge in the San Bernardino case, has ordered [and wants] Apple to help investigators gain access to encrypted data on the iPhone used by Farook. In effect, Judge Pym has ordered Apple to help determine Farook’s password so the FBI can simply unlock the phone. A brute force method of ‘hacking’ passwords may activate a common failsafe that is designed to destroy data after a certain number of failed password entries. No—Apple has not been ordered to release this process or software to the government. Thus, it is not immediately clear how providing a specific password to a specific suspected terrorist’s phone will enable the government to “extend this breach of privacy [the privacy of a dead suspected terrorist and mass murderer] and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”
Perhaps…Tim Cook has taken a bit of a leap…a lot of court battles will be fought before Apple is forced to build surveillance software allowing access to data from a billion users. Today’s issue is to provide access to data which resides on one and perhaps two iPhones, which are suspected to be the tools used to enable secure communication during the planning phases of the San Bernardino Massacre. Why? In hopes of thwarting future threats by learning more about this suspected terrorist cell. Meanwhile, however, US Magistrate Judge James Orenstein ruled in a NY case that he did not have the legal authority to order Apple to assist the FBI by unlocking iPhone to access information deemed pertinent. Judge Pym will not be bound by Orenstein’s ruling, but the conflicting ruling indicates further clarification of the law may be necessary.
Where do you weigh in-do you favor the FBI or Apple—society’s rights over individual rights?
Would your answer change if your mother, father, sibling, child or best friend were murdered by Farook and Malik? Why or Why not?
Another Contention—Old is Bad?!?
Has Tim Cook really taken too big of a leap? Gregg Keizer of Computerworld reported that according to a recent filing with a New York Federal court, Apple faces at least a dozen other demands by the Department of Justice to assist in accessing cell phones—not millions or billions, and not for surveillance, but perhaps the tip of an iceberg. In all thirteen cases (the twelve plus San Bernardino) the government cited the 1789 All Writs Act as the basis for its demand. The All Writs Act states:
The Supreme Court and all courts established by Act of Congress may issue all writs [formal orders issued by the courts] necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. An alternative writ or rule nisi [not yet final or absolute] may be issued by a justice or judge of a court which has jurisdiction.
In 1977 the Supreme court ruled that the power of federal courts is limited, “unreasonable burdens cannot be imposed.” It is clear from Tim Cook’s description of the potentially ‘chilling’ implications if Apple should comply, that Apple considers this court order to be an unreasonable burden. The conflicting rulings between Judge Orenstein (NY) and Judge Pym (CA) point to the potential subjectivity of the term ‘unreasonable burden.’
Regarding the 1789 All Writs Act, Apple has repeatedly played the card that the government has resorted to this ‘very old law’ for its case. Many people seem to have eaten this up–equating old to outdated rather than equating its age to mean that it has withstood the test of time. The media, in large, has neglected to report the apparent irony that Apple then turned around and invoked as its argument the First Amendment to the US Constitution contained within the US Bill of Rights (introduced in 1789, ratified 1791). The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Bill of Rights was added to the Amendment in order to safeguard individual freedoms. The Government of the United States was established to create a stronger union (together we stand) able to defend all borders and to establish standards of conduct (Laws, Acts, and so forth) that enable Federal, State and local governments, states, cities, communities, families, and individuals to coexist peacefully and synergistically. The government was established with three branches, Legislative, Executive, and Judicial in an attempt to achieve balanced power-and to prevent one branch from gaining too much power based on the premise that power corrupts and absolute power corrupts absolutely. Thus, these three branches of our government seek to balance the need to protect our nation and its citizens with our individual needs for liberty and freedom. Perhaps in the case of FBI Vs. Apple, the legislative branch will be required to modify laws to further clarify how much authority the judicial branch carries, but it is the tried and true balance between the branches that offers us the opportunity for such a debate.
Still not convinced that old is not the equivalent to outdated? Additional older ‘laws’ include “You shall not murder,” “You shall not steal,” and “Treat others as you would have them treat you.” All dating back thousands of years, and each founded in lasting, time tested principles.
Click Here to Learn More About Principles and Values
Possibilities for Synergy
One would think it is not a good idea to follow the statement,
We would like to help stop terrorists,
With the conjunction
But…
However, that is just what Apple CEO Tim Cook has done.
Likewise, one would think it is not a good idea to follow the statement,
We value Apple as a corporate citizen of these United States,
With the conjunction
But…
Perhaps, that is what the US government has done?
The good news…through difference, there exists possibility for synergy. Contemplate what might happen if both Apple and the US Government were to replace each ‘but’ with ‘and’?
Apple’s Position Possibly Would Become
We would like to help stop terrorists and work with the US government to establish sound boundaries that protect the rights of its citizens and Apple customers throughout the world. These boundaries will define and limit the government’s power to reach into anyone’s device to capture their data. Further, these boundaries will provide clear guidelines based on definition of enemy combatants so that Apple is free and able to, without violating customer trust, assist in criminal/terrorist cases that are clearly egregious—especially if timely gathering of data may thwart future terrorist/criminal activity. Thus, once established, these boundaries will ensure Apple cannot and will not be compelled to build surveillance software designed to intercept (in mass) messages, access health records or financial data, track location, or even access the phone’s microphone or camera without user knowledge.
The US Government’s Position Possibly Would Become
We value Apple as a corporate citizen of these United States, and in an effort to secure a mutually beneficial and secure nation, and to garner Apple’s future assistance investigating terrorist/criminal activity, we have agreed to specific boundaries (Laws) based upon definitions of enemy combatants. This agreement not only enables swift investigation of suspected terrorists and other organized crime, such the San Bernardino couple, drug cartels and so forth, but also affords simultaneous protection of the individual rights (now and in the future) of Apple’s broad customer base.
Ask yourself, “Will our country be stronger if Apple and the US government
continue to fight,
begin to cooperate, or
seek to synergize?”
Options 2 and 3 sound much better to me!
Do Apple and the US have common interests? Certainly. Do Apple and the US Government have different interests? Absolutely, but only out of difference can synergy be found.
Sound crazy? Post your thoughts!
Learn more about author-James M. Haden and VerAegis-The Legacy Series
