Apple Vs The People

by Kevin Ross-Andino, Esq.

The FBI has possession of the iPhone that was used by homegrown terrorist, radicalized serial killer Syed Rizwan Farook who, with his wife Tashfeen Malik (conveniently imported by Farook from Saudi Arabia pre-radicalized) killed 14 of Farook’s coworkers at a holiday party in December 2015. Farook and Malik were both killed by police after fleeing the scene of the mass murder. The FBI has had this iPhone for months and is, according to the FBI themselves, unable to break the phone’s encryption and access the data held within. In fact, the FBI is afraid to enter the password incorrectly ten times and thereby erase the phone’s data.

Sound familiar? Anyone with any thing/device that requires a password these days??

Let us set aside what should be our first reaction to this information: THE FBI HAS NO ONE WHO CAN CRACK AN iPHONE? (Really, they might want to consider a reboot of their recruiting techniques.) On this topic, check out John McAffee’s Business Insider op-ed.

Thing is, this iPhone was not OWNED by Farook. The iPhone in question was owned by his former employer, the San Bernardino County Department of Public Health, also the former employer of the 14 people murdered by Farook and Malik. Despite the fact that the San Bernardino County Department of Public Health consented to the search of the iPhone, the Justice Department obtained a search warrant for the same, presumably to make sure all “i’s” were dotted and “t’s” crossed. Turns out Justice may have had a point.

According to the FBI, when it became clear that their tech department had been outsmarted by the phone, they asked Apple to help defeat the iPhone’s encryption. When Apple refused to help, the Justice Department sought relief in the Federal Courts. Somewhat oddly, the FBI based their claim on the All Writs Act of 1798 which allows judges to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” On Tuesday Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to help the FBI defeat the whole 10 password attempt lockout to, in effect, give the FBI unlimited password attempts at getting into the phone.

Instead of complying, Apple announced that it will fight Judge Pym’s order. Apple points out, less than helpfully, that the FBI should have asked Congress to pass legislation regarding this issue, rather than seeking relief in the Courts. Apple CEO Tim Cook took to Apple’s website and posted a letter, ostensibly to Apple’s customers, that opens with:

“The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

He goes on, at length, about all the ways that Apple is fighting to protect its customers. Everything the company does, apparently, is in the interests of those customers as well as liberty and freedom.

Let us not be fooled. Apple is a giant, multinational corporation that must act in the best interests of its shareholders, which equates to money, profits, larger market share.

The question we must ask ourselves is this: If you own a cellphone that you allow an employee to use and that employee then violently murders 14 of your other employees and YOU wanted the information off that cellphone to assist law enforcement in investigating those 14 murders and potentially stopping such crimes in the future – would you want the tech company that sold you the phone help access data that same company is claiming YOU OWN (given it is stored on the cellphone you own)?

Apple has not publicly explained the legal reasoning behind its decision. However, it will likely rely on the 1st, 4th, and 5th Amendments to the Constitution. Certainly, the White House’s claim that “it only wanted to decrypt the one device and did not want Apple to ‘create a new backdoor to its products’” is a laughable comfort from a government executive department that has consistently tested the bounds overreach.

While one can – perhaps even must – applaud Apple’s decision to bring the debate over privacy and national security to the forefront of our national conscience, it is difficult to praise the company for throwing a massive roadblock into this important anti-terrorism investigation. How will Apple’s executive team, Board and shareholders feel if another attack occurs that could have been prevented had the government had access to the data on the phone?

But then, again, if it’s true that the US government is incapable of hacking into this iPhone, then we probably have much bigger things to worry about in terms of national cybersecurity.