DIGITAL PRIVACY RIGHTS VS. NATIONAL SECURITY

Apple and the FBI are at a standoff over a case involving the right to access data stored on a phone used by one of the San Bernardino terrorists. The FBI wants Apple to create a new software tool, known as a backdoor, that would undermine the phone’s security features and help unlock its contents. A federal judge in California has ordered Apple to create a backdoor. Apple has appealed the order arguing that such a backdoor would be “too dangerous to build.” 

The FBI has framed their current demand of Apple as a rather basic one: While privacy is a fundamental value to be cherished, it may have to be sacrificed in the name of national security. Apple must do what it can to help law enforcement combat terrorism. 

If only it were that simple.

Law enforcement has tried on numerous occasions to get legislation passed that would require technology companies like Apple to create so-called backdoors allowing law enforcement easier access to encrypted devices. All such legislative efforts have failed with significant backlash coming from the technology community. Some have characterized the opposition by tech companies as a business concern over lost revenues. Apple has made it clear that it would be difficult for them to sell unsecure devices in the global market. They also note that hackers and others might use such backdoors for more nefarious reasons. A backdoor used by the FBI today may become a tool for ISIL tomorrow.

Whatever program Apple developed could become a master key to devices worldwide.

The concern raised by Apple and other tech companies is that creating such a backdoor for the FBI will set a precedent.  How does Apple then respond to China when asked for the same backdoor they created for US law enforcement? How will that Chinese backdoor be used?

Will we all be safer if the FBI wins this case or will we become more vulnerable to hackers? 

Will the creation of a backdoor by Apple let the genie out of the bottle?

Here are some late-breaking developments: On February 29, a federal judge in the Eastern District of New York, James Orenstein, denied a government motion to force Apple to unlock an iPhone used by a meth dealer. The judge noted that the government could not rely upon the over 200-year-old All Writs Act to compel Apple to unlock the phone. The Justice Department will likely appeal the decision. Though not binding on the California court, Judge Orenstein’s ruling will, no doubt, be used by Apple to support its case against developing a backdoor for the terrorist’s phone.

FBI director James Comey sums the situation up as follows—“We have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety. Corporations that sell stuff for a living should not resolve that tension. It also should not be resolved by the FBI, which investigates for a living.”  

The Eastern District of New York Court ruling in favor of Apple came just one day before a scheduled congressional hearing that will include testimony from FBI Director Comey and Apple General Counsel Bruce Sewell on the balancing of America’s security and privacy.  (In an earlier blog post following the terrorist attacks in Paris, I commented on the pendulum swing in this country from Snowden government surveillance privacy paranoia to enhanced security concerns.)

The courts or Congress will ultimately have to resolve this issue.