Apple vs. the FBI: Fight for access to terrorist's smartphone pits privacy against public safety
While the Justice Department says it just wants to crack the passcode on one particular phone, Apple Inc. says all customers' privacy is at stake.
By J. Craig AndersonStaff Writer
Apple CEO Tim Cook said his company is fighting a federal court ruling requiring Apple to provide the FBI with a "master key" to an encrypted smartphone used by a terrorist in the San Bernardino massacre late last year. File photos by The Associated Press
The public fight between Apple Inc. and the U.S. Department of Justice over access to a dead terrorist's locked iPhone has smartphone owners conflicted about whether the never-ending battle against terrorism is worth subjecting their devices to privacy and security vulnerabilities.
On Tuesday, a federal judge in California ordered tech giant Apple to help federal agents hack into the locked iPhone of a now-deceased perpetrator of December's terrorist attack in San Bernardino, California.
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Apple has said the ruling, if it stands, would require the company to create a less-secure version of the iPhone operating system that would threaten all customers' privacy and security if it fell into the wrong hands. Apple has vowed to fight the ruling in court.
The Justice Department has argued that it only wants Apple's help getting around a specific security feature, enabling FBI agents to crack the passcode on one particular phone that may contain information about other would-be terrorists.
In Maine, opinions were mixed Thursday as to whether Apple should comply with the court order or resist it. Many said they could see merit on both sides of the argument.
U.S. Sen. Angus King, an independent from Maine who sits on the Senate's Select Committee on Intelligence, said he was still grappling with the issue of where to draw the line between protecting U.S. citizens' privacy and public safety interests.
King said he would much rather see the issue resolved through broad policy discussions involving many stakeholders, and not within the context of a single lawsuit.
"I haven't concluded where I stand on this, but I don't think it should be settled in a courtroom in California," he said in a telephone interview with the Portland Press Herald.
Hans Nielsen of Yarmouth said, "If they can do it for just one phone," then Apple should assist the FBI. "If they do it in a way where it would affect everyone, that's a different conversation."
Yarmouth resident Hans Nielsen was one of a handful of passers-by in downtown Portland on Thursday who agreed with King that it's not a simple, black-and-white issue.
"If they can do it for just one phone, I would say yes (Apple should assist the FBI). If they do it in a way where it would affect everyone, that's a different conversation," Nielsen said.
Susannah Belbas of Portland agreed.
"In the singular sense, I feel it would be a good idea (to provide access to the phone). But I can see how it would be detrimental to Apple because a lot of people would question them and their security and privacy policies," she said.
Most adamantly opposed to the judge's ruling were technology professionals, who said the new software could destroy consumer confidence in their digital privacy, crash the U.S. information technology industry and force companies such as Apple to relocate overseas.
Susannah Belbas of Portland sides with Apple concerning the FBI's request for Apple to release software to unlock an iPhone from the San Bernardino shooters. "I can see how it would be detrimental to Apple," she said, "because a lot of people would question them and their security and privacy policies."
"We realize just how threatening this is, and just how slippery a slope this is," said Edward Sihler, a University of Southern Maine cybersecurity researcher and assistant director of the Maine Cyber Security Cluster.
Defenders of the ruling, including U.S. Sen. Susan Collins, a Republican from Maine who also sits on the Senate intelligence committee, said the privacy concerns have been overblown, and that the investigative needs of the FBI easily outweigh those concerns.
"If there was ever a case in which a tech company should be cooperating with an FBI investigation, this is it," Collins said in a written statement. "First of all, the phone was not even owned by the terrorists; it was owned by the county for whom he worked, and the county has given the FBI permission to search the contents of the phone. I think that is a very important point that has been missed in much of the debate on this."
SECURITY ENABLED ON SUSPECT'S IPHONE
On Dec. 2, a married couple, Syed Rizwan Farook and Tashfeen Malik, opened fire on a group of about 80 of Farook's co-workers at a San Bernardino County Department of Public Health office party, killing 14 and injuring 22. They also planted three pipe bombs that never detonated.
The couple fled the crime scene but were tracked down by police and killed in an ensuing shootout.
Investigators later determined that Farook and Malik had been inspired by Muslim jihadi terrorist groups. They recovered an iPhone 5C belonging to the county that had been assigned to Farook, but he had enabled the optional four-digit security passcode, preventing them from retrieving any useful information. Another optional iPhone security feature wipes the phone of all user data if an incorrect passcode is entered 10 times in a row. It is unknown whether Farook enabled that feature.
Tashfeen Malik, left, and Syed Farook carried out the deadly terrorist attacks in San Bernardino, Calif. An iPhone belonging to one of them has proven impervious to FBI efforts get information. U.S. Customs and Border Protection via AP
Federal investigators want Apple to disable the data-wiping ability on Farook's phone so they can crack the passcode by entering random numbers. The company is arguing that any security-disabling software, once created, could be exploited for nefarious purposes.
"We have great respect for the professionals at the FBI, and we believe their intentions are good," Apple CEO Tim Cook wrote in an open letter to customers. "Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone."
'HUGE CONFLICT' BREWING FOR DECADES
The Apple case is the latest in a string of confrontations between government and private industry over access to personal digital devices such as smartphones, said Omer Tene, vice president of research and education at the Portsmouth, New Hampshire-based International Association of Privacy Professionals.
"This kind of crystallizes a huge conflict that's been brewing between law enforcement and government for decades," he said.
Tene said that while the trade organization does not take sides on issues of government policy, it regards the Apple case as significant because the FBI essentially wants Apple to create a "master key" that could be used to unlock other encrypted mobile devices.
"If there is a master key somewhere, then that key could be used not only in appropriate cases but in inappropriate cases," he said.
Attorneys at leading Maine law firms including Bernstein Shur, Verrill Dana and Pierce Atwood said the case is likely to be decided at the appellate level, possibly even by the U.S. Supreme Court.
That may be good news for Apple, said Portland attorney Michael Bosse of Bernstein Shur. The U.S. Court of Appeals for the 9th Circuit, which handles appeals of California court decisions, is regarded as liberal and tends to favor privacy over security, he said.
If the circuit court did overturn the magistrate judge's order and the case was appealed to the Supreme Court, it would face the possibility of a 4-4 split decision following the recent death of conservative Justice Antonin Scalia, Bosse said. In cases in which the Supreme Court is equally divided, the lower court's ruling stands.
Portland attorney Jon Stanley of Verrill Dana noted that Scalia's vote would not have been a shoo-in for the Justice Department, saying that the late justice sometimes opposed what he regarded as overreach by law enforcement officials.
"Scalia was not an automatic vote for the government by any means," Stanley said.
Staff Writer Gillian Graham contributed to this report.