The Real Stakes of Apple’s Fight With the FBI

On Tuesday, the government obtained a court order compelling Apple to hack into an iPhone as part of the FBI’s investigation into the San Bernardino shooters. While the government’s investigation is an important one, the legal order it has obtained crosses a dangerous line: It conscripts Apple into government service and forces it to design and build what is, in effect, a master key that could be used as a mold to weaken the security of an untold number of iPhones.

The resulting order is not only unconstitutional, but risks setting a precedent that would fundamentally undermine the security of all devices, not just the one iPhone being debated in the news.

A bit of background is necessary to understand this debate.

As part of its investigation, the FBI has apparently obtained an iPhone 5C used by one of the shooters. The bureau has said that the phone is encrypted and protected by a passcode, and that it needs Apple’s assistance to unlock the phone. Specifically, it has asked Apple to design and write custom software that would disable several security features on the phone.

While Apple has generally cooperated in the investigation, it has refused the FBI’s latest demand to write malware that would help the FBI hack the device. To its credit, Apple has poured incredible resources into securing its mobile devices. One consequence of that effort is that Apple does not have a ready way of breaking into its customers’ devices. In the words of Apple’s CEO, Tim Cook: “We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.”

But the FBI is dismissive of that effort. According to its legal filing, the FBI believes that Apple could, if compelled, build a master key that would allow the FBI to try to break into iPhones like the one involved in the San Bernardino investigation. The FBI acknowledges that this would require Apple to write new software and then cryptographically “sign” that software (as the iPhone will accept only software updates signed by Apple).

A federal magistrate judge granted the FBI’s request the same day, but it gave Apple five days to object. Again to its credit, Apple has vowed to fight.

It is critically important that Apple win—for cybersecurity and for the fate of privacy in the digital age—for several reasons.

First, the government’s legal theory is unbounded and dangerous. The government believes it has the legal authority to force Apple into government service, even though the company does not actually possess the information the government is after. Of course, historically, the government has sought and obtained assistance from tech companies and others in criminal investigations—but only in obtaining information or evidence the companies already have access to.

The difference between those cases and Apple’s is a radical one. If Apple and other tech companies—whose devices we all rely upon to store incredibly private information—can be forced to hack into their customers’ devices, then it’s hard to imagine how any company could actually offer its consumers a secure product. And once a company has been forced to build a backdoor into its products, there’s no way to ensure that it’s only used by our government, as opposed to repressive regimes, cybercriminals or industrial spies.

Second, this debate is not about one phone—it’s about every phone. And it’s about every device manufactured by a U.S. company. If the government gets its way, then every device—your mobile phone, tablet or laptop—will carry with it an implicit warning from its manufacturer: “Sorry, but we might be forced to hack you.”

Some might accept that risk if it were possible to limit access to legitimate governmental purposes, overseen by a judge. But as Apple’s Cook points out, backdoors are uniquely dangerous: “Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.”

That risk is only growing every day as the “Internet of Things” expands. For the government, every device connected to the Internet will be more than just a novel convenience—it will be a new window into your home. The fridge that responds to your verbal commands might have a backdoor to allow for remote listening. The TV that allows you to video chat with your family might be commandeered into a ready-made spy camera.

These are the real stakes of the debate: Either American companies are allowed to offer secure products to their consumers, or the U.S. government is allowed to force those companies to break the security of their products, opening the door for malicious hackers and foreign intelligence agencies alike. For the sake of both our privacy and our security, the choice is clear.

This post was originally published by Time.

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Anonymous

I fail to understand how you can defend a company that creates encryption software that terrorists use to avoid detection but won't help the U.S. fight terrorists. Apple has put themselves in a very bad position. Aiding terrorists and not aiding civilized people.

Bill H

The government has a legitimate national security interest in its request to Apple to unlock the terrorist iPhone. I am disappointed that the ACLU has taken this hysterical approach to privacy rights by opposing limited investigative capabilities that protect all of our citizens. Better that it support a constructive approach that allows the government to put its request before an independent court for an order (or not) based upon the merits of each case. This is NOT an open invitation for the government to snoop everyone's iPhone--shame on the ACLU for asserting that it is. Better it should expend its efforts to counter voter suppression laws and similar real threats to individual liberty.

Anonymous

I agree with the person who commented that Apple could unlock that one phone, turn over the info that the FBI seeks then wipe the phone's memory clean. I think to refuse is to court obstruction of justice.

Anonymous

Many people have commented on the aspects of Apple having to create software that would allow anyone to hack into an iPhone. There is another issue that is more troubling to me and that is the government is saying it has the authority to force a company to create a product that does not exist, and that the company does not want to create. If this is upheld by the courts then the government has unlimited power to force any company to create anything they want created regardless of any adverse impact on the company or on society. Is this the unlimited reach of government that was created by the Constitution?

Bruce Robinson

Consider this: if the San Bernardino shooters had stored their communications in a safe, would the government be out of bounds in requiring the seller of that safe to open it, even if said company had marketed the safe as being uncrackable, even by them?

That's the kind of question the Supreme Court is likely to ask....

Jim Price

Like many others, I'm sure, my first thought was that Apple should cooperate with the FBI. After all, why wouldn't they want to help catch a crook? Upon reading the article, though, it became clear that the issue isn't just one phone, nor is the fact that it is all phones the only issue. What about the monstrous spectre being presented here of government conscription?

If Apple developers are forced into an effort to design malware, how will that effort be measured? Who will pay for their time? Will there be a deadline that has to be met? What about quality control? Will a programmer who designs a weak module be criminally liable for treason?

You may say that I'm overreacting and presenting far-fetched scenarios, but my reply to that charge is that none of these questions is even necessary unless we allow the government to force us to work on a project we believe is morally and ethically wrong. It's foolish to demand that a dangerous road be built and then offer assurances that no one will ever go down it. Far better to leave the dangerous road unbuilt.

Don

If Apple one is unwilling to perform the work the government wants, does the court actually believe it has the power to institute forced labor?

Jason Lee Strickland

The next statement the ACLU should make is "we support these proven terrorists right to privacy and hope all their information is kept from the hands of our government".

Anonymous

I agreed with you. I called the ACLU and seeking for help. I got denied. I am a victim of target individual since 1999 and made an online report to ACLU in Northern California. I've been tortured 24/7, harrass, stalk by organized of group of criminal people, expose in radiation 24/7 using my neighbor, throwing garbage front of my house, destroying my property and messing with my dog and my wife and children. These people are unemployed, doing the criminal act and terrorism act and totally not train using the high technology equipment. They steal from the tax payer and taking advantage of the American citizen. I don't think the government are responsible for these act These ex security guards are using the government names and the Home Land Security name just to scare the victim and get away from they crime and steals people identity and sell it to undocumented aliens want to live in United State. They have been fooling our government and love breaking the system . I reported the full name of the person who is responsible for these criminal, terrorism and evil act. And also told them that a have a video and pictures of those unemployed criminals who been stalking and invading my privacy and my family's privacy.
I donated money to ACLU and talked to the other citizen , friends and relatives about how the ACLU will fight for our freedom. I am also a member of these Union . But what I got from ACLU. " DISAPPOINTMENT" I am totally disappointed from them. I didn't get any call from ACLU at all. A month passed, I called The ACLU because of those low people have been following me no matter where I go. I was crying and begging for "HELP". But the word I got from them was " SORRY, WE CANNOT HELP YOU"!

Anonymous

The FBI should have the ability to investigate any and all avenues to resolve an issue and come to a conclusion in a case. They should have the ability to look into or investigate the related media devices a person uses when they're the subject of an investigation or found guilty of a crime. However, they should go through the proper channels to do so. We have a court system in this country which requires a warrant from a judge in order to have exclusive right to investigate something. If I'm a suspected terrorist that is believed to be involved in a crime, it should be assumed that if the authorities are given the right opportunity to get a "search warrant" from a judge, they will. Same goes for media devices. Get the warrant and search the phone. There is no reason to have an open "back door" for the government to get into any phone any time they please without going through the proper channels. When we give up freedoms in order to protect us from an enemy, we are no longer free. I would rather live free and take the chance as opposed to having no privacy in order to keep me safe. I commend Apple for standing their ground and only complying with the government when they go through the proper channels and procedures to accomplish their investigation. I believe in doing this, Apple is helping us to stay a FREE PEOPLE!

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