The legal world and the tech world are colliding in a controversy that may affect the way that smartphones are used and criminal investigations are conducted in the future. This issue raises questions of law enforcement and technology, the answers to which will affect our privacy, safety and security, no matter which side wins.
The issue arose after the FBI began to investigate the shootings by Syed Farook and his wife Tashfeen Malik in San Bernardino, California last December that killed 14 people and wounded 22 others.
As part of the criminal investigation into the shootings, the FBI recovered an iPhone that was used by Farook. That iPhone is owned by Farook’s employer, the San Bernardino County Department of Public Health, which has given the FBI permission to access the data on the phone.
The FBI has retrieved some data from the iPhone by accessing Farook’s iCloud account, though the latest back up occurred on October 19, 2015, about six weeks before the shooting. But the FBI wants access to all data on the phone to conduct a thorough investigation. Neither the FBI nor Apple knows whether any relevant information exists on the phone.
On February 16, 2016, a court order was issued, requiring Apple to cooperate with the FBI’s investigation of the San Bernardino attack. After that order was issued, Tim Cook, CEO of Apple, issued a statement saying that Apple would not comply with that order.
Why the FBI Can’t Access Data on the iPhone
The FBI needs Apple’s help to access data on Farook’s phone. Since iOS 8 was launched in September 2015, the iPhone has offered an auto-erase setting that users can enable that will automatically erase all data from the phone after 10 failed attempts to enter a passcode. This security feature is designed to protect data from being stolen by someone in possession of the phone.
Without this auto-erase feature, someone could continuously try to guess the passcode until the phone was unlocked with the correct one, giving access to data on the phone.
If the FBI were to enter the passcode incorrectly 10 times, all data on the iPhone would be permanently erased.
What Does the FBI Want From Apple?
The FBI wants to conduct a thorough investigation of the crime, including discovering the data on Farook’s iPhone. According to James Comey, Director of the FBI, “We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it.”
Essentially, the FBI wants Apple to disable the auto-erase feature on Farook’s iPhone. The FBI has not asked Apple to provide the FBI with software that disables the auto-erase feature. Instead, the FBI has stated that Apple can retain sole possession of the software after the auto-erase feature has been disabled.
According to Comey, this investigation “is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.”
Why Apple Is Fighting the Court Order
Apple is disputing the court order granting FBI’s request to disable the auto-erase feature from Farook’s iPhone. Apple says that the software to disable the auto-erase feature doesn’t exist and that it shouldn’t be forced to create the software.
Apple CEO Cook published A Special Message to Our Customers explaining Apple’s position. “Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.”
While the FBI says that this is an isolated case, Apple disagrees. “Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Police departments around the US have locked iPhones they would like unlocked with Apple’s assistance to help them solve crimes.
Apple is concerned that once this software is created, the company could be forced to use it repeatedly, perhaps by hostile foreign governments or criminals. Cook has stated, “Once the process is created, it provides an avenue for criminals and foreign agents to access millions of iPhones. And once developed for our government, it is only a matter of time before foreign governments demand the same tool.”
In an interview with ABC News, Cook pointed out how much information people keep on their phones. “There’s probably more information about you on your phone than there is in your house. Our smartphones are loaded with our intimate conversations, our financial data, our health records. They’re also loaded with the location of our kids, in many cases. So it’s not just about privacy, it’s about public safety.”
Another fear of Apple’s is that the government could then force companies to create surveillance software that doesn’t currently exist. Apple argues, “For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.”
Apple has cooperated with the FBI to a certain extent. In his letter to customers Cook said, “Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal.”
The FBI’s Response to Apple’s Claims
The FBI acknowledges Cook’s claim in his letter to customers that Apple would be required to create new software, but argues that Apple is the only company who is able to write this software.
The FBI says that their request relates exclusively to Farook’s iPhone and that it is not asking Apple to hand over the software to the FBI. “Apple may maintain custody of the software, destroy it after its purpose under the Order have been served, refuse to disseminate it outside of Apple, and make clear to the world that it does not apply to other devices or users without valid court orders.”
Apple’s claim that the software, once created, could fall into criminal hands is also disputed by the FBI. “No one outside Apple would have access to the software required by the Order unless Apple chose to share it.”
The FBI also challenges Apple’s claim that the request violates privacy rights, pointing out that “the former user of the phone is dead and no longer has any expectation of privacy in the phone and the owner of the phone consents both to the search of the phone and to Apple’s assistance.”
The Next Steps
On March 1 the US House of Representatives Judiciary Committee will begin holding a hearing on the issue. The judicial hearing on the legal case is scheduled for March 22.
As this dispute involves public and personal safety, privacy rights and the future of technology, expect much continued discussion and legal proceedings in the months and years to come.
Do you believe that Apple should be forced to disable the auto-erase feature to allow the FBI to access data from the iPhone? Vote in the poll to share your opinion.
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