Earlier this week Apple's CEO, Tim Cook, released a letter to its customers stating the grounds of the FBI's request for Apple to “reasonably assist” in hacking iPhone security features in investigations. Somewhere around 94 million Americans have iPhones. If you are like me, you use your iPhone to pay bills, place weekly Amazon orders, or buy movie tickets and the like on the go. Different from most, my phone use includes confidential communication and valuable client information. My iPhone is essential to my practice. If it were to be hacked, thousands of my clients would be impacted. Also, failure to take adequate steps to safeguard client information is also a violation of the ethical rules that govern an attorney.
Regardless of your personal use, I'm sure the government demand to bypass security features for the sake of national security comes with mixed emotions. On one hand, I feel safer knowing the highest level of law enforcement would have access to people's phones; for example, in the case with the San Bernardino shooters. On the other hand, I fear if the FBI has access to bypass phone security features, who else will have that access and what damage could result from it? Once that back door opens, who all can come through it?
What Exactly is the FBI Asking Apple to Do?
Apple doesn't track passcodes to get into every phone the same way they do iCloud passwords and Apple IDs. If a phone password is attempted and failed more than ten times, the phone is programmed to erase automatically all of its contents. This security measure was one of the highlighted features introduced to ensure Apple Pay (their proprietary credit card payment system) use is safe for its customers. What the FBI is asking Apple to create is not a standard password that can unlock all iPhones. The FBI wants a device that can assess all possible passcodes and attempt them all without shutting down the phone and erasing its contents. Tim Cook stated:
"The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers," Cook said. "The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe."
Once Apple gives access to the FBI, it will make phones vulnerable to being accessed by anyone else. That is the crux of the problem.
Why I Want Apple to Assist with the FBI Search:
Ordinarily, searching phones with a warrant is simple for law enforcement. The owner is required to provide access to the police, or they are in violation of a court order and subject to contempt. The phone's owner can then be jailed until such time that the contempt is purged by providing the passcode.
However, when suspects are missing or dead, there is no simple order to gain secure access to their phone. That is a grave concern for cases like the San Bernardino shooters, where the FBI needs the contents of the phone for national security.
Like all other 4th Amendment search and seizure concerns, the government needs a public justification that outweighs the intrusion on the individual. I would say this is a dangerous intrusion on both Apple's customers and Apple. There will be a limited number of cases that could justify the security breach of smartphones. However, there are times the country needs to exhaust all of its resources in the wake of the technology of terrorism. Let the 14 deaths in the San Bernardino terrorist shooting be a good example of that. If the FBI had a way to obtain phone data that could assist them in their efforts to protect our country, shouldn't we want them to?
We have already seen these 4th Amendment intrusions unfold, for the sake of national security, in the Patriot Act, which was passed by Congress in 2001. For the same reasons above, I support the intrusion if it means our national security can be strengthened. Perhaps this outcome with Apple is about to unfold similarly as it did in the Patriot Act. At the same time, I am very concerned with privacy in a world where very little is private.
Why I Oppose the FBI Mandating Apple's Assistance:
Tim Cook said it best, “this could leave phones vulnerable to anyone.” I fear that my personal data is at risk if a system the FBI is mandating, is created. Right now, there is no source of such technology that hackers can obtain; and I feel safe in keeping vital client information on the one device that is always within five feet of me. However, I am at risk of my phone getting lost or stolen like anyone else. As a trial lawyer always on the go, to not have this encrypted security feature could be detrimental to my practice.
The system the FBI is attempting to mandate would require Apple to change the encryption of phones as they presently exist to a simpler and hackable coding system. iPhones and other smartphones don't use typical data storage. They use encrypted data storage to protect the contents of phones from outside poachers. This isn't like the iPhone hack of Jennifer Lawrence where the hackers were able to log into her iCloud account and later go on to steal other celebrities' personal photos. This new system override would mean that anyone would have access to breach your passcode at any point and gain access to the contents of your phone. That could happen from potentially anywhere or anyone. Do we feel safe having personal data on a device that can potentially be hacked by anyone?
It should be noted that not everyone would gain access to this hacking tool if one ever existed. That would be very expensive; not to mention nearly impossible to replicate. Access to the mandated Apple tool would be high-level national security use alone. For hackers to abuse a newly vulnerable system would take a lot of time, intelligence and money.
That being said, once the back door exists, any user is a risk of having personal information disseminated. That risk could fundamentally change how businesses use smartphones and other cutting edge technology.
Also, I am concerned with the erosion of personal liberty. We used to have solid 4th Amendment protections against unreasonable search and seizure; now such protections have been eviscerated by exceptions to the law. Now the police can set up a roadblock and check your car for violations of the law. Our Founders would be stunned that a person can be stopped, questioned, and searched for no reason. This type of intrusion was one of the fundamental grievances against Great Britain before we declared our independence.
It is my opinion that by safeguarding Apple from assisting the FBI, we are protecting terrorism. For the same reasons I support the Patriot Act, I would have to support Apple being forced to help the FBI. I don't think that foreigners, and especially terrorists, have the protections of the Constitution Apple thinks they are protecting here. I hope we can find a balance between privacy and security concerns to prevent mass hackings while still enabling investigations in high-profile, high-security cases.
One suggestion would be for Apple to take possession of the phone and provide the contents to the FBI when given a search warrant. That way the back door into the phone could be kept proprietary by Apple. Hopefully, this safeguard could limit the prospect of others being able to hack into the phone. In exchange, the government should indemnify Apple if this happens and are sued for a data breach.
I have faith in the intelligence and creativity of Apple to overcome both obstacles of creating a system safe enough for users but breach-able for critical FBI investigations. Somewhere in this problem, there is a solution that can balance individual and national security.
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