By Rachel Blevins
The Federal Bureau of Investigation announced Monday that it has found an “outside party” to successfully hack the iPhone belonging to a suspect in the San Bernardino shooting.
The FBI had earlier gone to court to force Apple Inc. to create software to override the iPhone’s encryption, claiming it was the only way to access the information on the suspected terrorist’s phone.
Vickie Sutton, the Texas Tech School of Law associate dean for research and faculty development, said that although this case appears resolved, the battle between Apple and the FBI is far from over because it raises new questions about the government’s power.
Picture provided by Creative Commons.
“Organizations that care about privacy are going to keep this alive and will continue talking about it because with the scenarios that have been laid out, now the government has a backdoor—as they call it—into the phone,” Sutton said. “That places concerns with people who care about privacy.”
If the presumption is that the government will not break the iPhone’s encryption without a court order, Sutton said, a system of checks and balances needs to be in place.
“It’s really the same conversation we have about the NSA wiretapping program,” Sutton said. “How much are we willing to give up of our privacy at the risk of terrorism, versus how much do we want to protect our privacy. It’s a balancing act, and that’s what we should be thinking about.”
Ann Rodriguez, an instructor in the Department of Advertising who has a law degree and teaches Mass Communications Law, said one of the most interesting aspects of the case is how the FBI initially claimed that forcing Apple to create encryption-breaking software was the only answer.
“In this country, there’s sort of that free-market feeling,” Rodriguez said. “Over time, we have not wanted [the] government to be too involved in our own personal lives, but also in businesses’ lives. We feel like businesses need to succeed or fail based on their own decisions and merits. We try to lessen the amount of regulation on businesses. So, for a court to tell a company — especially one the size of Apple — that they have to do this when they haven’t done anything wrong seems unprecedented.”
Rodriguez said she thinks the FBI used the case of the San Bernardino shooting in an attempt to get a software that would give it greater power.
“Anytime you implicate national security, that trumps a lot of other decisions,” Rodriguez said. “In fact, if you look at the Patriot Act, our desire for national security got all of us to buy into the fact that we were willing to give up some of our freedoms.”
Robert Sherwin, an assistant professor of law who also serves as the director of advocacy programs in the Texas Tech School of Law, said that even though the U.S. passed the Patriot Act in 2001, today society’s views about the importance of privacy are different.
“We saw, in the days and months after 9/11, that Americans were willing to give up large amounts of personal privacy because we felt unsafe,” Sherwin said. “As time goes by, that fear naturally subsides. And so, 15 years without a major attack on U.S. soil tends to bring with it a pendulum shift toward getting that privacy back.”
By using the All Writs Act of 1789 to justify forcing Apple to create software to override the iPhone’s encryption, Sherwin said the FBI had a legitimate case. However, he thinks Apple also has a case in terms of privacy concerns.
“The FBI would tell you this is just the modern iteration of a court ordering a telephone company to assist law enforcement in installing a number key logger on a rotary telephone, which is something the Supreme Court has said is perfectly OK,” Sherwin said. “Apple and its allies would tell you it’s much worse than that, particularly given how large a role our phones and other devices play in our everyday life.”
Apple CEO Tim Cook drew attention to the San Bernardino iPhone case in February when he released a letter warning that the implications of creating a “backdoor” into the iPhone were far greater than the FBI claimed.
Sutton said she was not surprised that Apple reached out to the public in the midst of the case. She said the FBI was likely not surprised either.
“I don’t think the FBI changed course,” Sutton said. “I think they probably anticipated that Apple would go to their public because Apple is a brand. I think that part of their strategy was to go to the public to try to get sympathy because Apple believed that the FBI chose this case because it would get more public sympathy.”
If the FBI were to win such a case, Rodriguez questioned how the government would force Apple to create the software, and how that requirement would set the U.S. apart from other nations with more authoritarian political systems.
“Doesn’t that seem really oppressive and not what our nation is all about?” Rodriguez said. “It seems like it’s what other nations that we fight against are about. So I think that while it’s well-intentioned, the decision—and pursuing that decision by our federal government—would go against the democratic foundation of our country. And, I think at some point, most people would get behind Apple rather than behind the government.”
The FBI has yet to release information about what it found on the suspect’s iPhone.
Rodriguez said it is interesting that the FBI would go to court without any certainty that there was useful information on the phone.
“We don’t allow police departments in this country to search people’s cellphones without search warrants, and they can’t get search warrants without a reasonable basis to believe that there is useful information that they can only get from that phone,” Rodriguez said. “I’m not even sure we have that in this situation, so if we don’t allow our local police departments to do this, why would we allow our federal government?”
About JOUR 3312
