Should Apple help the government gain access to the iPhone used by one of the San Bernardino terrorist killers?
It seems a straightforward question, with an obvious answer. It has become more so in the last couple of days, with new details emerging to demonstrate just how reasonable investigators’ requests really are.
The FBI, backed by a lawful court order, is asking only for assistance in getting into this one phone. They are not asking Apple to hack the phone, nor to give them what they would need to get into all Apple phones. They just need Apple to turn off the “self-destruct” mechanism that prevents multiple attempts at guessing the password. Then investigators will use their own technology to do the guessing.
Marco Rubio, Ted Cruz, and John Kasich all got this right during Thursday night’s GOP primary debate. As Rubio put it, “The only thing they are asking of Apple is that Apple allow them to use their own systems in the FBI to try to guess the password of the San Bernardino killer.”
The Fourth Amendment is not at stake here, given the appropriate judicial involvement. Moreover, the actual owner of the phone, the government employer of terrorist Syed Farook, has given its consent in this case.
There are legitimate concerns about what the government might do when the owner of the phone does not consent. Those are easily addressed. The best analogy here is to a safe-deposit box at a bank. The bank rents it to you, and does not retain the keys for employees to get into it themselves. But if the police show probable cause to a judge, and then show up at the bank with a warrant to open your box, the bank’s employees will let them in and allow the cops drill the box open. That is essentially what’s going on here.
“Apple should be forced to comply with this court order,” Cruz said. ” Because under the Fourth Amendment, a search and seizure is reasonable if it has judicial authorization and probable cause. In this instance, the order is not ‘put a back door in everyone’s cell phone.’ If that was the order, that order would be problematic, because it would compromise security and safety for everyone.”
Even John Kasich made a good point about this. “Where’s the president been?” he asked. “You sit down in a back room and you sit down with the parties and you get this worked out. You don’t litigate this on the front page of the New York Times, where everybody in the world is reading about their dirty laundry out here.”
There’s still another and perhaps more urgent reason for Apple to cooperate. Again, this is a very special case, a terrorism investigation where the phone’s owner has even given consent. If tech companies resist court orders of this sort, they are inviting Congress to mandate a weakening of encryption for everyone. Not only will this reduce privacy, but it will be defeated, as criminals and terrorsts go to the black market for stronger encryption.
That is the last thing that lovers of freedom should want.
