The latest round in an ongoing debate over U.S. government access to cellphone data is playing out in California after the FBI obtained a court order demanding that Apple unlock a cellphone used by one of the perpetrators of the deadly attacks in San Bernardino. Apple has so far refused to abide by the order, arguing that to do so would violate its commitment to its customers and their privacy as well as increase the risk that hackers and criminals could steal private data from iPhones.
Both the government and Apple have strong arguments. While a resolution is likely to be reached in private, it is important that this debate began in public, where citizens can see what the FBI is asking for and why Apple is objecting. In essence, the public has a front-row seat in the difficult debate over national security and the need to gather information to prevent terrorist attacks versus Americans’ cherished right to privacy.
Contrast this to the years after the Sept. 11 terrorist attacks, when Congress gave intelligence agencies great latitude to sweep up private information, much of it about American citizens, with limited oversight. Communications companies turned over millions of records. Love him or hate him, Edward Snowden brought the U.S. government’s vast data collection to the public’s attention.
These powers were pared back last year after the Patriot Act expired and lawmakers replaced it with more narrowly tailored legislation.
The government’s longtime concern with encryption underlies the current debate. Apple now uses encryption on all its phones to protect customers’ personal information, which includes not just phone numbers, but possibly financial information, travel plans and health data. Keeping this information private makes sense, until a phone is used to plan and carry out mass murder, which is what the FBI alleges in the San Bernardino case. Syed Rizwan Farook and his wife, Tashfeen Malik, who allegedly professed allegiance to ISIS, are believed to have killed 14 people in a December shooting spree.
Apple argues that it can’t unlock the iPhone used by Farook without developing a “back door” method for getting through the security code that Farook set. The company says that once such a back door is developed, hackers could exploit it. Turning this “hack” over to the government would be problematic because it has shown it isn’t the best steward of private information. There is also no guarantee the government wouldn’t use it to gather information far beyond what is on the one phone in question.
Further complicating the situation, Apple has turned its refusal to unlock Farook’s iPhone into a public relations campaign. Despite high-minded language in a letter company CEO Tim Cook wrote to customers, Apple has complied with such orders before. It has unlocked phones for authorities at least 70 times, according to documents filed in a New York case, The Daily Beast reports.
Ultimately, this will likely be resolved in court. Sen. Angus King and Rep. Chellie Pingree make a strong argument that Congress should update the law to clarify what should happen in this case. We agree in principle, but Congress has shown itself incapable of resolving much simpler disputes. And, it is worth remembering, Congress authorized the data collection that Snowden revealed.
Determining where privacy ends in the name of national security is no simple task, and Congress, intelligence officials and companies holding personal data have gotten it wrong in the past. More public scrutiny could help ensure the line is adjusted to better serve both interests.