Readers may have heard of the recent battle between the FBI and Apple, Inc. over the issue of whether Apple may be compelled to allow law enforcement access to the iPhone of the mass murderers Sayed Rizwan Farook and his Tafsheen Malik. Last December, Farook and Malik gunned down at least 14 people in San Bernadino, California.
An Apple iPhone was recovered at the scene; it was owned by the San Bernadino health department, the employer of the Islamist radical murderer Farook. The FBI, in the course of its investigation, seeks to read the contents of what is in the iPhone device.
Its attorneys have filed a request for a court order that would compel Apple to de-encrypt the phone, and allow its contents to be read. Apple has reacted strenuously, maintaining that the government has no legal basis for what it is trying to do. The stage has thus been set for a protracted legal battle.
Edward Snowden has called the case “the most important tech case in a decade.” Many journalists have characterized the case as yet another abusive attempt at government surveillance overreaching.
Nevertheless, a close look at the relevant facts and law casts the matter in a very different light. I believe that the government is well within its rights to order Apple to open up this iPhone for examination. I realize that this is not a popular stand to take, and will explain my reasoning here.
We must first begin by recalling the terrible slaughter that took place in December by the two Islamist criminals, Farook and Malik. At the crime scene, Farook’s iPhone was recovered. Apple devices are well known to be very secure, with encryption and security features that arguably exceed those of its competitors.
Without help from Apple, law enforcement cannot read what might be inside the iPhone. The government has ordered Apple to write software that permit the phone to be opened up. The reasons and justifications of the government are reasonable, narrowly tailored, and done as part of a legitimate criminal investigation. The request for the courts order convincingly argues the following:
1. Apple is only being asked to aid in the execution of an existing, lawful search warrant in this criminal investigation.
2. It would be very little or no burden to Apple to write some code to permit access to the iOS (the phone’s operating system).
3. The request is narrowly tailored. The government is not seeking to monitor every iPhone, but only the one owned by Farook.
4. The All Writs Act of 1789, which is valid law and has been upheld by numerous judicial decisions, requires individuals and private companies to cooperate with the government in the execution of valid warrants and writs (see pages 9 through 12 of the request for the court order).
The aftermath of the shooting
Apple has posted a grandstanding letter on its website vowing to “resist” the court order compelling it to cooperate with the investigation. The company has sanctimoniously tried to characterize their refusal to cooperate with the investigation as a brave effort to stand up for “privacy rights.”
Their claims, however, ring hollow. As the legal authorities cited by the government make very clear, the government has every right to demand that Apple allow the FBI to look inside the murderer’s phone. Suppose, for example, that Farook were discovered to have previously unknown safe deposit box at a bank somewhere. And suppose that the key to the deposit box had been lost, rendering the box inaccessible.
The government would be perfectly justified in ordering the bank either to make a duplicate key, or to drill the lock out and force entry into the box. Similarly, it is standard procedure in any criminal investigation to comb through a defendant’s personal effects, possessions, and records, in an effort to gain information. There is absolutely nothing improper in this; in fact there would be something seriously wrong if it were not being done.
Against the government’s arguments, all Apple has to offer are hypothetical fears that any de-encryption code it writes for the FBI might “fall into the wrong hands” and be used in ways that were not originally intended. It claims that the government is seeking an unlawful “expansion” of its authority.
These assertions are false. Apple is a corporation that does business in the United States and is bound to obey the laws and court orders that are issued here. Vague fears of possible future “abuse” do not justify refusal to obey court orders. If Apple is worried about a de-encryption code “falling into the wrong hands” or “being abused,” then it has remedies it could pursue.
It could certainly request that the court insert language in its final order making the code a classified security item. It could establish monitoring protocols. It could do any number of things (and seek compensation from the government) to assuage its alleged fears of security breach. I am confident that Apple has the brain-power to come up with creative solutions.
But what it cannot do is refuse to cooperate.
Apple’s position has nothing to do with noble legal principle or some altruistic advocacy of “privacy rights.” It has everything to do, however, with business. Its concern for its market share, its branding, and its image are what it is worried about, not the rights of the public. Frankly, in the opinion of this writer, no company has done more to degrade personal privacy rights than has Apple.
Apple has marketed itself as somehow “special” or “different” from other smart phone manufacturers. It has either stated or implied that its security features were better than those of its competitors. This recent court order now (in Apple’s eyes) seems to show that Apple is a company like any other.
What it really fears is even the hint, or the appearance, that its mythical “security” might somehow be tarnished by its cooperation with the court order. This position is ridiculous, of course, but one that comports with Apple’s arrogant cultivation of its “special” image, whether this image is in fact based on reality.
“Privacy rights” are not unlimited. No company, however powerful, is exempt from obeying the law, especially when it has invoked that same country’s laws to generate colossal profits over many years. A modern cell phone is an intimate tool, and the FBI has every right to want to look inside Farook’s phone.
It is sadly true that, in recent years, there has been overreaching on the part of the government with regard to the virtually unregulated data collection actions it has taken since the advent of the Patriot Act. Such overreaching has done much to alienate the public, and to destroy the sense of confidence that many citizens may have in the sanctity and efficacy of the law. For this crisis of confidence, the American leadership must accept its share of the blame. However, this is a separate issue, and one that is unrelated to the subject of this article.
When horrific crimes have been committed, law enforcement has a right to conduct a reasonable investigation. And when court orders have been issued compelling individuals and businesses to cooperate, they have no right to refuse.
This may be an unpopular line to take. But the law has nothing to do with popularity.
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