The legal maxim about hard cases making bad law might aptly be applied to the FBI’s attempt to force Apple help it to unlock the phone of one of the individuals responsible for last December’s mass shooting in San Bernardino.
The FBI itself appears not to have the technological know-how to unlock the iPhone in question. Apple, for its part, is unwilling to create new software to override the security functions which are proving so troublesome to federal agents. On 17 February, its chief executive, Tim Cook, made clear that the company would challenge a magistrate’s order that it must do as the FBI has requested.
On the face of it, there is a genuine imperative to understand more fully the motivation of Syed Rizwan Farook and Tashfeen Malik, who killed 14 people and seriously injured 22 others during their attack. The extent to which the pair were influenced or radicalised by external, extremist groups remains uncertain and there is also a lack of clarity about who they communicated with prior to committing their act of terrorism. American security services are understandably keen to ensure that if there is an information trail which might lead them, for instance, to co-conspirators, they should access it as swiftly as possible.
Yet Tim Cook is right when he argues that the order, if left unchallenged, would have a much broader impact than merely assisting the FBI in this case. First, it would force the development of software which has the capacity to override the security features on millions of iPhones, the very vast majority of which are owned by innocent, law-abiding citizens. If it fell into the wrong hands, such software could obviously be used for criminal purposes.
Even putting that possibility aside, it is hard to believe US security services would not seek to employ it to access the data of other individuals of interest. The unique aspect of this case of course is that the phone’s owner is deceased: but once a door has been opened, it tends to be pushed wide.
More than all this though, the order must be challenged because meek compliance will give the green light to security agencies in America – and quite plausibly elsewhere too – to use the courts to force technology firms to undermine the integrity and safety of their own products, which in turn has the potential to destabilise the rights and expectations of their customers.
After all, it is fundamental to the way we all store and exchange information in the modern world that we presume to do so securely. In this country that supposition is already under threat by virtue of the Investigatory Powers Bill, which has attracted criticism from groups including Liberty and even the Intelligence and Security Committee of Parliament. Under the terms of the Bill, communications providers will be forced to store details of our data use for a year. Turning to the courts in the US to force Apple’s hand is part and parcel of the same effort.
This is not necessarily an easy battle to fight: citizens have a right to communicate without being snooped on, but they also expect state security agencies to protect them from terrorists. Few would give much of a damn about the FBI accessing data from the iPhone of a dead terrorist. That perhaps is all the more reason to support Apple’s stance – because many will line up against it.
If we believe that our data should indeed remain ours, then any attempt by states to circumvent the security of communications systems we now take for granted should be heartily resisted.
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