The FBI and Apple
reached a cease-fire last week, but it can’t last, because it
leaves unresolved the future of reasonable searches under the Fourth
Amendment. It would be a public service if both sides started making
their arguments forthrightly.The FBI thought it needed Apple’s help to gain access to the iPhone used
by San Bernardino terrorist Syed Rizwan Farook. Apple refused,
claiming that doing so would require giving the government “backdoor”
access to all iPhones. 
Last week the FBI said a third party had come forward with a solution for unlocking Farook’s iPhone. So much for Apple’s claim.
Still, the issue won’t go away, because Apple says it plans to make more of its devices and services inaccessible to law enforcement. Nor will it become a mere philosophical question, as the Brussels terrorists’ evasion of surveillance make clear.
Apple should be more upfront about its corporate strategy. General counsel Bruce Sewell called “deeply offensive” the Justice Department’s allegations that the company deliberately changed iPhone security to block law enforcement. But Apple told its customers a different story when it announced changes to its operating system in 2014: “Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company announced. “So it’s not technically feasible for us to respond to government warrants.”
In a recent interview with Time magazine, Apple CEO Tim Cook described the FBI’s concerns as “a crock.” He claimed that “no one’s going dark” and added that “we shouldn’t all be fixated just on what’s not available.” His argument is that authorities should find other ways to prevent terrorism and enforce the law so that Apple can keep promising to protect its customers from court orders. That’s understandable as a corporate marketing initiative, but other industries aren’t allowed to operate that way.
Apple should also stop conflating the broader issue of encryption with helping unlock a single iPhone. Timothy Lee summarized the difference on Vox: “The fact that we don’t know how to make an encryption algorithm that can be compromised only by law enforcement doesn’t imply that we don’t know how to make a technology product that can be unlocked only by law enforcement.”
As for the FBI, it is technically correct that the case is about unlocking a single iPhone, but the bureau would have a stronger argument if it admitted that Apple is right that there are many other cases in which law-enforcement agents need help—especially now that Apple has put its operating system beyond their reach.
Technology companies report data on their court orders, subpoenas and warrants. According to the latest figures, in the first half of 2015 Facebook received more than 17,500 requests, Google more than 12,000, Microsoft nearly 6,000 and Apple almost 1,000. Apple objects that the Manhattan district attorney says he has 175 cases where he needs help from Apple similar to what the FBI sought, but that level of volume is hardly unprecedented.
The FBI should also acknowledge that it pursued litigation instead of a legislative solution because the supposedly unitary executive branch hasn’t been united. Until recently, President Obama ducked the issue. He finally took the FBI’s side earlier this month, at the South By Southwest conference in Austin, Texas.
“You cannot take an absolutist view on this,” Mr. Obama said. “If your view is strong encryption no matter what and we can and should produce black boxes, that does not strike the balance that we’ve lived with for 200 or 300 years. And it’s fetishizing our phones above every other value. That can’t be the right answer.”
If there’s no way to gain access to new communications devices, the president asked, “how do we solve or disrupt a terrorist plot? What mechanisms do we have to even do things like tax enforcement. . . . If government can’t get in, then everyone’s walking around with a Swiss bank account in their pocket.”
It’s a telling analogy. In the pre-digital era, Congress legislated that banks and traditional telecommunications companies must design their systems to comply with legal warrants. Under the Communications Assistance for Law Enforcement Act of 1994, telecoms must enable court-ordered surveillance such as wiretaps. Banks and telecoms may prefer to market their services as beyond the courts’ reach, as Apple does, but are barred by law.
Thus the first round of FBI vs. Apple has handed the key question to Congress: Either the Fourth Amendment permits reasonable, warranted searches in the digital era or Internet companies can design systems to defeat court orders, putting themselves—and criminals, including terrorists—above the law
Last week the FBI said a third party had come forward with a solution for unlocking Farook’s iPhone. So much for Apple’s claim.Still, the issue won’t go away, because Apple says it plans to make more of its devices and services inaccessible to law enforcement. Nor will it become a mere philosophical question, as the Brussels terrorists’ evasion of surveillance make clear.
Apple should be more upfront about its corporate strategy. General counsel Bruce Sewell called “deeply offensive” the Justice Department’s allegations that the company deliberately changed iPhone security to block law enforcement. But Apple told its customers a different story when it announced changes to its operating system in 2014: “Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” the company announced. “So it’s not technically feasible for us to respond to government warrants.”
In a recent interview with Time magazine, Apple CEO Tim Cook described the FBI’s concerns as “a crock.” He claimed that “no one’s going dark” and added that “we shouldn’t all be fixated just on what’s not available.” His argument is that authorities should find other ways to prevent terrorism and enforce the law so that Apple can keep promising to protect its customers from court orders. That’s understandable as a corporate marketing initiative, but other industries aren’t allowed to operate that way.
Apple should also stop conflating the broader issue of encryption with helping unlock a single iPhone. Timothy Lee summarized the difference on Vox: “The fact that we don’t know how to make an encryption algorithm that can be compromised only by law enforcement doesn’t imply that we don’t know how to make a technology product that can be unlocked only by law enforcement.”
As for the FBI, it is technically correct that the case is about unlocking a single iPhone, but the bureau would have a stronger argument if it admitted that Apple is right that there are many other cases in which law-enforcement agents need help—especially now that Apple has put its operating system beyond their reach.
Technology companies report data on their court orders, subpoenas and warrants. According to the latest figures, in the first half of 2015 Facebook received more than 17,500 requests, Google more than 12,000, Microsoft nearly 6,000 and Apple almost 1,000. Apple objects that the Manhattan district attorney says he has 175 cases where he needs help from Apple similar to what the FBI sought, but that level of volume is hardly unprecedented.
The FBI should also acknowledge that it pursued litigation instead of a legislative solution because the supposedly unitary executive branch hasn’t been united. Until recently, President Obama ducked the issue. He finally took the FBI’s side earlier this month, at the South By Southwest conference in Austin, Texas.
“You cannot take an absolutist view on this,” Mr. Obama said. “If your view is strong encryption no matter what and we can and should produce black boxes, that does not strike the balance that we’ve lived with for 200 or 300 years. And it’s fetishizing our phones above every other value. That can’t be the right answer.”
If there’s no way to gain access to new communications devices, the president asked, “how do we solve or disrupt a terrorist plot? What mechanisms do we have to even do things like tax enforcement. . . . If government can’t get in, then everyone’s walking around with a Swiss bank account in their pocket.”
It’s a telling analogy. In the pre-digital era, Congress legislated that banks and traditional telecommunications companies must design their systems to comply with legal warrants. Under the Communications Assistance for Law Enforcement Act of 1994, telecoms must enable court-ordered surveillance such as wiretaps. Banks and telecoms may prefer to market their services as beyond the courts’ reach, as Apple does, but are barred by law.
Thus the first round of FBI vs. Apple has handed the key question to Congress: Either the Fourth Amendment permits reasonable, warranted searches in the digital era or Internet companies can design systems to defeat court orders, putting themselves—and criminals, including terrorists—above the law
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