On February 29, 2016, a federal judge rejected the FBI’s
request to unlock the work-issued
iPhone 5c of Syed Rizwan Farook, who with his wife killed 14 people at a 2015
holiday gathering of county workers. The FBI and DEA cited the All Writs Act, a
law passed in 1789 that authorizes federal courts to “issue all writs necessary
or appropriate in aid of their respective jurisdictions and agreeable to the
usages and principles of law.”[1] The
U.S. Justice Department was demanding that “Apple create software to bypass
security features on the phone.”[2] In
other words, Apple was to “write code that overrides the device’s auto-delete
security function.”[3]
In response, Apple’s lawyers argued that the statute does not give the court
the right to “conscript and commandeer” the company into defeating its own
encryption, thus making its customers’ “most confidential and personal
information vulnerable to hackers, identity thieves, hostile foreign agents and
unwarranted government surveillance.”[4] Tim
Cook, Apple’s CEO at the time, said the FBI “was asking his company to create a
’back door’ that could be used to unlock other phones, exposing customer data.
Agreeing to the FBI's demand would set a dangerous precedent that could lead to
other calls for Apple's help to obtain private information, Cook said.”[5] Only
weeks later, the FBI abruptly dropped the case because the bureau had found an
outside company with technology that could serve as a master key. The FBI could
use the “key” to unlock any iPhone.
This left customers fearful that their data was now less than private even
though Apple had promoted the iPhone product as not having a “back door” In the
end, “(t)he iPhone fight
exposed a rift between the FBI and Silicon Valley technology companies over
encryption, and sparked a debate about the right balance between privacy and
national security.”[6]
I suspect that although a trade-off, or tension between the right of privacy
and the national-security interest of the United States existed at the time,
electronic privacy would become harder and harder to protect as a result of the
FBI’s tactics.
No doubt
focused entirely on national security, the U.S. government cannot be expected
to protect an individual right to privacy when it is in the way. The FBI “sometimes
loses sight of what is important to corporations . . . and privacy is incredibly important,"
Jack Bennett, a key figure in the FBI’s iPhone hack, said after the fact.[7]
Even so, he was unapologetic about the FBI being able to access the phone. “We
were trying to get on one phone because we had 14 murdered people."[8]
As it turned out, investigators did not find anything of significant value on
the phone.[9]
Even so, the damage was done as far as privacy is concerned.
Even though Bennett
“disputed that the FBI was asking Apple for a tool that could access other
iPhones, calling it a ‘one-shot deal,’”[10] the
bureau could be expected to extend the one-shot deal the next time phone data
might serve a useful purpose in preventing or prosecuting a terrorist-attack or
even a lesser crime. "What's comfortable for a private corporation that
will still provide an investigator the ability to stop or prevent a terrorist
attack, a missing child or a national security incident?" Bennett asked.[11]
The list could easily be extended; hence, some legal limitation on the FBI’s
access would be necessary lest the bureau resort to clandestine data-swooping
on a massive scale not limited to particular crimes and people related to them
in some way.
Apple’s iPhone
was supposed to be hack-proof; the company promoted the product as not having a
“back door.” Even so, this turned out not to be so. It may be, therefore, that
there’s no such thing as a completely secure system. Privacy may simply be an
illusion marketed by the company and valued by the customers. Customers of any
smart phone could feel vulnerable, moreover, as a result of the FBI
successfully getting into the iPhone.[12]
Furthermore, a court can put a gag rule on a tech company, such that customers
may be oblivious to any personal data being extracted. This only exacerbates
the insecurity to be felt by customers regarding the privacy of their
information. Microsoft
had sued the Justice Department over the gag-order practice in April, 2016,
“arguing that law enforcement was relying on these orders too often.
Specifically, the software giant said the gag orders violate the Fourth
Amendment right of its customers to know if the government searches or seizes
their property and also the company’s First Amendment right to speak to its
customers.”[13] Yet the gag orders
could continue. To be sure, a company’s First Amendment right seems a bit of a
stretch here.
Lastly, the FBI could be expected to continue to go wherever private data useful in uncovering a crime exists. For example, Open Whisper Systems, a maker of a widely used encryption app called Signal, received a subpoena in the first half of 2016 “for subscriber information, including web browsing histories, telephone numbers, methods of payment, internet providers, and data stored in the tracking “cookies” of the web browsers associated with two phone numbers that came up in a federal grand jury investigation in Virginia.[14] Interestingly, “one of Signal’s biggest draws is that it does not collect most of that information.”[15] Civil liberties lawyers argued nevertheless that “the Justice Department request fell well outside the bounds of what is typically covered by a subpoena, including basic subscriber information.”[16] Particularly upsetting, the subpoena arrived with a court order that said Open Whisper Systems was not allowed to tell anyone about the information request for one year. Technology companies contend that court-imposed gag orders are being used too often by law enforcement and that they violate the Bill of Rights. The companies also complain that law enforcement officials are casting a wide net over online communications — often too wide — in their investigations. Justice Department officials, for their part, argue that these gag orders are necessary to protect developing cases and to avoid tipping off potential targets. The officials say that they are simply following leads where they take them.”[17]
Lastly, the FBI could be expected to continue to go wherever private data useful in uncovering a crime exists. For example, Open Whisper Systems, a maker of a widely used encryption app called Signal, received a subpoena in the first half of 2016 “for subscriber information, including web browsing histories, telephone numbers, methods of payment, internet providers, and data stored in the tracking “cookies” of the web browsers associated with two phone numbers that came up in a federal grand jury investigation in Virginia.[14] Interestingly, “one of Signal’s biggest draws is that it does not collect most of that information.”[15] Civil liberties lawyers argued nevertheless that “the Justice Department request fell well outside the bounds of what is typically covered by a subpoena, including basic subscriber information.”[16] Particularly upsetting, the subpoena arrived with a court order that said Open Whisper Systems was not allowed to tell anyone about the information request for one year. Technology companies contend that court-imposed gag orders are being used too often by law enforcement and that they violate the Bill of Rights. The companies also complain that law enforcement officials are casting a wide net over online communications — often too wide — in their investigations. Justice Department officials, for their part, argue that these gag orders are necessary to protect developing cases and to avoid tipping off potential targets. The officials say that they are simply following leads where they take them.”[17]
In conclusion, even wealthy
companies like Apple are no match for the FBI and the courts in protecting
customer privacy. Just as companies pursue profits often single-mindedly, the
FBI can be expected to attempt to uncover any lead. Furthermore, the electronic
means of storing personal information may simply be too susceptible—too easily
accessed by a government (and hackers)—for privacy to be at all realistic. Smartphone
technology, as well as social media such as Facebook pages, is causing us all
to come to terms with a recalibrated acceptance of privacy-risk and even loss.
It is asking too much, I submit, for a company to be tasked with defending an
increasingly antiquated expectation of privacy. As a result, we might expect
people to recalibrate what personal information we are willing to put on a
phone (or social-media page). The Apple case can be interpreted as one of the
triggers of the societal recalibration, rather than settling the matter.
1. Jim Stavridis and Dave Weinstein, “Apple
vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,”
The World Post, March 8, 2016.
2. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
3. Jim Stavridis and Dave Weinstein, “Apple
vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,”
The World Post, March 8, 2016.
4. Jim Stavridis and Dave Weinstein, “Apple
vs. FBI Is Not About Privacy vs. Security—It’s About How to Achieve Both,”
The World Post, March 8, 2016.
5. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
6. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
7. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
8. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
9. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
10. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
11. The Associated Press, “New
FBI Head in San Francisco Was Key Figure in iPhone Hack,” The New York Times, October 5, 2016.
13. Nicole Perlroth and Katie Benner, “Subpoenas
and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.
14. Nicole Perlroth and Katie Benner, “Subpoenas
and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.
15. Nicole Perlroth and Katie Benner, “Subpoenas
and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.
16. Nicole Perlroth and Katie Benner, “Subpoenas
and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.
17. Nicole Perlroth and Katie Benner, “Subpoenas
and Gag Orders Show Government Overreach, Tech Companies Argue,” The New York Times, October 4, 2016.
