Your life or your privacy?

By Michele Hanisee

Apple’s position of refusing to cooperate with the FBI to help it unlock the phone of terrorist Syed Farook reminds one of the old Jack Benny line “Your money or your life”, or as Apple might put it “Your privacy or your life.”  Apple would have one believe that is the seriousness of the stakes involved, but it is not.

United States Attorney Eileen M. Decker made the case against Apple very clear.  Apple’s lack of co-operation is hindering the FBI investigation into the terrorist attack by Farook and his wife in San Bernardino on December 2, 2015, that took the lives of 14 innocent Americans and shattered the lives of numerous families. Equally importantly, however, is that the refusal to cooperate is based on the false claim that helping the FBI will result in opening the floodgates to the wholesale invasion of the privacy of all cell phone users.

Despite numerous misleading reports on social media, as is made clear in the 40-page motion by the US Attorney, the FBI does not want Apple to break the encryption on the device iPhone used by Syed Rizwan Farook.  The FBI wants simply wants Apple to alter the System Information File, the software that runs on the device to prevent the phone from erasing itself.

As all Apple owners know, as currently configured, after 10 failed attempts at entering a passcode, an iPhone can erase the personal data on the device. Also, the FBI is simply asking Apple to automate the process of attempting passcode combinations.  Most importantly, the court documents make it clear that the FBI will allow Apple to work on the phone at its office in such a manner that the software solution will be limited to this case and this phone.

As Technology Reporter Joe Miller made clear, Apple made the conscious choice in 2014 to remove itself from being able to access encrypted devices, mainly to avoid “ethical dilemmas such as the one they are faced with today.

In a recent letter to the public, Apple CEO, Tim Cook, announced that Apple is fighting a federal court order requiring Apple to bypass the encryption on the iPhone of terrorist murderer Syed Farook.  According to the letter, Apple is making this decision not based on the particulars of the Riverside mass terrorist killing but on larger policy issues that could allegedly affect all Apple product users.

Cook concedes that the FBI did not ask Apple to install this backdoor software on every single Apple device in the US or the world. But he then goes on to postulate about the evils that will result from this government intrusion.  Cook insists that compliance with this court order will put the safety of all Apple product users at risk.  Although Cook professes his respect for the FBI, the hyperbole ramps up as the letter progresses.  It begins the issues under the heading, “Threat to data security.”  Cook says complying with the court order will, “put our personal safety at risk,” it “threatens the security of our customers, “it “make[s] our users less safe.” Finally, Cook concludes, that Apple is, “being forced to expose its customers to a greater risk of attack.”

Let’s clarify the issues.  Apple apparently believes that the harm that may result from cooperation with the FBI will allow future invasion of cell phone privacy and subsequent access to consumer data that will allow identity theft, fraud, and other financial inconveniences.  According to Apple, those outcomes are on the same plane of harm as terrorist attacks on Americans.

Is it reasonable for Apple to choose to protect a terrorist’s text messages rather than the life of  U.S. citizens?   Apple is a private company, who’s CEO,Cook, clearly believes that cooperating with this court order will jeopardize sales and profits.  Being the gatekeeper of the balance between privacy and security is a job for the courts and our government who are (though the decisions they make are not always supported by everyone) at least answerable to the public.  In this case, on the sliding scale between privacy, and security the court has made a decision that the safety of the public is more important.

Apple has reacted to the limited court order in this case by wildly overblowing the potential fallout.  Instead of forthrightly acknowledging the strict limits the court will place on the cooperation, Apple fearmongers by claiming  the government “could extend this breach of privacy and demand that Apple builds 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.”  That’s not what is contemplated, and Apple well knows that.

The Courts, the government, and our elected officials are answerable to the public.  But Apple is not. Apple is protecting the rights of terrorists who used a government owned phone to plan fatal attacks on people living in the United States!

Let’s be clear, what the FBI is asking for is reasonable, a way to crack the four digit passcode for one particular phone, with Apple able to control (or destroy) the program created to accomplish that task.  That’s hardly the first step in the wholesale invasion of privacy.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys (ADDA). She can be contacted atmhanisee@laadda.com.   The views and opinions expressed in this article are those of the author and may not necessarily reflect the official policy or position of the Association of Deputy District Attorneys.