Apple vs FBI: Should Privacy Rights Outrank a Federal Investigation?

Protesters on Tuesday gathered outside Apple stores worldwide, including the local flagship store on Michigan Avenue, to decry the FBI's move to compel Apple to unlock an iPhone belonging to one of the people behind December's mass shooting in San Bernardino, California.

According to court documents released Tuesday, Apple faces 11 other such orders. The company says it's taking a stand for the privacy rights of iPhone owners by denying the FBI's request, but the FBI says it's merely trying to conduct the most thorough investigation possible and seek justice for victims of terrorism.

The iPhone at the center of the debate belonged to Syed Rizwan Farook, who, along with his wife Tashfeen Malik, shot and killed 14 people and injured 21 others in a terrorist attack at the Inland Regional Center in San Bernardino. Farook and Malik were killed in a shootout with police officers the same afternoon as the attack. The shooting was believed to be inspired by ISIS, though no direct connections have been made.

Farook’s password was reset after the government took the phone. Because of an iPhone feature that automatically erases data if the password is entered incorrectly 10 times, the information on the phone became inaccessible.

Last week, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to provide specialized software to the FBI so that it can get into the phone. The software would take out an encryption feature that erases data after someone tries to unlock the phone unsuccessfully multiple times.

Apple CEO Time Cook says his company will contest that order.

“Opposing this order is not something we take lightly,” Cook said in letter to customers. “We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

FBI Director James Comey responded in a statement, saying the San Bernardino investigation “isn’t about trying to set a precedent or send any kind of message.”

“Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure—privacy and safety,” Comey said. “That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.” 

The American Civil Liberties Union has come out on the side of Apple, saying it will support the company’s legal fight against the court order.

Alex Abdo, a staff attorney with the ACLU Speech, Privacy and Technology Project, released a statement calling the order “unlawful.”

“The government's request also risks setting a dangerous precedent. If the FBI can force Apple to hack into its customers' devices, then so too can every repressive regime in the rest of the world,” Abdo said.

The case has now sparked a debate in the tech and security industries over how to balance personal privacy in criminal investigations. Many say that allowing the FBI to access information on the phone is a slippery slope, while others say it could lead to pivotal information in the San Bernardino case.

Omri Ben-Shahar is a law professor at the University of Chicago and co-author of “More Than You Wanted To Know: The Failure of Mandated Disclosure.”

“When I hear Apple and Tim Cook talk about its concern for consumers’ privacy and users’ privacy, I can’t shake the feeling that Apple is shedding crocodile tears – that it is parading itself and the entire tech industry, Google and others joining along, to protect consumers’ privacy,” Ben-Shahar said. “Tim Cook talks about Apple’s civic duty … at the same time, Apple is in the business of data mining and data sharing and building devices that allow data collection in the commercial context.”

Lee Flosi, a retired FBI agent and executive vice president of the security firm Quest Consultants, said the FBI should have access to the phone.

“Privacy is not an absolute right,” Flosi said. “There’s limitations. When people commit crimes, whether killing someone or being involved in a terrorist act, they lose some of their rights to privacy. The government has a vested interest in investigating that crime or activity to protect the citizens in our communities.”

But Bob Sloan, the head of UIC’s Department of Computer Science, has his concerns.

“There’s a fairly novel question here of just how much you can force [Apple] to do,” Sloan said. “They’ve already turned over everything in their possession. And then the question is, what things can you force them to design and build and then turnover after they’ve designed them and created them.”

Sloan worries that if Apple is compelled to make the software, it may have a broader reach than criminal investigations in the United States.

“Once the software is created, it’s then a trivial modification when the government or China or Iran or India or Pakistan says, we need, under our laws, access to all of our citizens.” 

Weigh In: Should Apple Unlock the iPhone in question?