FBI’s Standoff with Apple: Privacy v National Security

It’s like a very slow, prolonged car chase: It’s public, it’s interesting and it’s potentially fatal. The FBI’s case with Apple pits 2 core public interests against one another in the most recent clash of the titans: Privacy v National Security.

What does the FBI aim to do?

The FBI, in their bid to help prosecute one of the San Bernardino terrorists, is trying to use courts to force Apple to write new code that would unlock the encrypted iPhone used by the aforementioned terrorist. To clarify, the FBI wants Apple to create new software of its iOS operating system specifically designed to disable the security measures of its own product, the iPhone. Needless to say, Apple is refusing to do so.

There is some merit in the FBI’s argument. The preservation and enforcement of National Security through the persecution and removal of the San Bernardino terrorists is in the interests for all. However, it seems to be the case that Apple is trumping the FBI currently.

Why?

Apple’s Arguments

1. Punishment for selling an iPhone – Apple claims, and quite understandably so, that it is ‘far removed’ from the San Bernardino terrorists and that it should not be held responsible for simply placing the product into the stream of commerce. In allowing the court order, up to 8 employees of Apple would be tied down for at least a month, at the very least. Does the punishment really fit the (external) crime?
2. Punishment: Permanent not Temporary – Though the FBI claims the “backdoor” software code will be ‘just this once’, it’s unlikely as more important cases involving iPhones will arise and future judges will be more inclined to follow precedent and grant a similar order. It would mean Apple would have to “create full-time positions for a new ‘hacking’ department”. Again, does the punishment fit the (external) crime?
3. Creating something they don’t want – The FBI’s request would conscript Apple to develop software that does not exist and that Apple has a vested interest in not creating as it violates Apple’s “core principles”: Breaching the Fifth Amendment to get information.
4. Software Code = Speech – Apple contends that software code is a form of speech and you cannot ‘compel speech and viewpoint discrimination in violation of the First Amendment’.

Though that last argument is shaky, Apple seems on track to succeed in its endeavour to escape public authorities. The privacy of all individual’s iPhones is quite an ideal for the FBI to fight against. If today’s New York District Court decision is anything to go by, it’s not an ideal the FBI has much chance of containing.

The Courtroom Drug Fight the FBI didn’t Win

In a separate but related court battle, a magistrate judge in the US District Court in New York sided with Apple in refusing to force Apple to assist in gaining access to the locked iPhone of an accused Brooklyn drug dealer.

The case turned on the same interpretation and law as the San Bernardino case and the decision is a major setback for the Justice Department and FBI in their attempts to compel Apple to comply with their requests.

The decision is not a binding precedent and the Justice Department have stated their intentions to appeal. At the moment at least, it seems like this standoff doesn’t have a conclusion in sight.

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