A court order demanding that Apple help the FBI unlock San Bernardino shooter Syed Farook’s iPhone has fueled a heated debate among experts.
In a letter posted on Apple’s website late Tuesday, CEO Tim Cook said that the company will contest the judge’s order and called the government’s demands “chilling.”
While members of the intelligence community emphasize the need for information that they say could prevent future plots, civil liberties advocates believe that the order sets a dangerous precedent. Here’s what experts are saying:
There is no precedent.
“What you’re dealing with here, is in essence, new territory from the perspective of both the technical side as well as the legal side,” Cedric Leighton, the former director for training of the National Security Agency, told AirTalk.
“There are other historical precedents with previous forms of technology where access was given to law enforcement taking them back all the way to World War II," said Leighton. "But for modern devices, there is nothing that really speaks to the request that the FBI has.”
What is the government asking for?
FBI Director James Comey told Congress last week that investigators couldn’t access Farook’s phone.
Julian Sanchez, a senior fellow at the Cato Institute, tells AirTalk that the government is asking for a hacking tool that would allow unlimited guesses of the phone's passcode. Otherwise, investigators will likely hit the maximum attempts before the device deletes its data.
Jack Lerner, director of the Intellectual Property, Arts, and Technology Clinic at UC Irvine, tells Take Two that the government is making broad use of the All Writs Act of 1789:
The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
“What does that mean? That’s hard to say," said Lerner. "A lot of people are saying it can mean anything you want to say.”
The issue is much larger than one case.
Sanchez points out that this legal fracas isn't just about the San Bernardino case.
“If it were technically possible to get into that data, of course, the government has every right to get into that data,” he tells AirTalk. “The question is the larger legal principle. Do we want to accept that courts may compel any software developer, any technology manufacturer to become a forensic investigator for the government?”
He also points out that this technology, once it’s out there, could fall into the wrong hands.
Apple not aiding the FBI could also backfire.
Erroll Southers, director of the Homegrown Violent Extremism Studies Program at the University of Southern California, spoke to Take Two from a counterterrorism expert’s standpoint.
“You want to have as much information as legally available to you as possible to look into this investigation,” Southers says. “This is still an act of an ongoing investigation because we are not sure of the scope of this plot.”
He says that this case could set an example to people planning criminal activities.
“I think we want to at least understand that we have an adversary that realizes that if we're going to set a precedent here — of not being able to get this information, which may be appropriate — does this become a standard operating procedure for them using encryption, which is nothing new, going forward for other plots?”
How can the government and private sector work together?
Southers says we should resist the urge to criticize the administration and the intelligence community.
He suggests that one way for the government and private sector to work together is to have a justified investigation accountable to a third party, such as a court.
One possibility is to have Apple, or any company that has to cooperate with authorities, control the software it creates.
“It basically has to evolve into a system of trust, which is something that is very hard to achieve between the private sector and the government,” Sanchez says. “And that is something we're, I think in the cybersecurity realm in general, we need to evolve to and we haven't gotten there yet.”