Opinion

Apple isn't protecting a shooter's

iPhone data they're defending digital
privacy
Susan McGregor
As CEO Tim Cooks open letter to customers stating that Apple would oppose the order
points out, the request has implications far beyond the legal case at hand

Unlocking San Bernardino shooters phone is a slippery slope of allowing government access to
private companies data. Photograph: Carolyn Kaster/AP
Thursday 18 February 201605.30EST
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oth the motion Tuesdayordering Appleto help the FBI access the contents of San
Bernardino shooter Syed Farooks encrypted iPhone and Apple CEO Tim Cooks
public letter refusing to do so appear to be the latest volley in a dispute over

encryption that has been going on between law enforcement and Silicon Valley, off and
on, for over 20 years.
Though the FBIs request studiously avoids askingAppleto directly decrypt Farooks
data or hand over his key, the debate is the same: can law enforcement compel tech
companies to provide the means to access consumers data?
Apples switch to default encryption on iPhones has been a subject of complaint from
law enforcement since itsintroductionin 2014, but the FBIs current request seems to
intentionally side-step the encryption question, instead requesting Apples assistance to
bypass non-encryption features of the iPhone in order to get at its currently encrypted
contents.
While the particular model of iPhone in question here means thatit may be technically
feasiblefor Apple to comply with the FBIs request, this is not the true heart of the
issue. As Cooksopen letterto customers stating that Apple would oppose the order
points out, the request has implications far beyond the legal case at hand.
Cooks letter makes a point of characterizing the software solution that the FBI is
requesting as a backdoor, situating the request squarely in the middle of the broader
debate about whether the government can make tech companies provide access to
customer data.
Though the FBIs request does not ask Apple to produce software that acts as a master
key for Farooks phone the kind of solution that has been at the center ofprevious
debates if Apple complies with the current request then the end result is the same: the
company would have to produce a software workaround that would allow the agency to
bypass enough of the iPhones security so that it would be possible to quickly and
automatically brute-force Farooks passcode, thereby decrypting its contents.
Whatever the term used (in 2014, FBI Director James Comeyinsistedthat his agency
was not seeking a back door, but a front door), this software for providing
exceptional access to the contents of Farooks phone, once created, could theoretically
be obtained and used by bad actors on other devices.
Even if the software could somehow be made specific only to Farooks phone (which is
not necessarily possible) and completely protected from unauthorized use (which is not
likely), exceptional access is a precedent that travels poorly. As highlighted last
summer in anarticleauthored by a whos-who list of cybersecurity experts:
ThisisnotonlyaUSissue.TheUKgovernmentpromiseslegislationtocompel
communicationsserviceproviders,includingUSbasedcorporations,togrant

accesstoUKlawenforcementagencies,andothercountrieswouldcertainly
followsuit.Chinahasintimatedthatitmayrequireexceptionalaccess.Ifa
Britishbaseddeveloperdeploysamessagingapplicationusedbycitizensof
China,mustitprovideexceptionalaccesstoChineselawenforcement?

While the FBI may only be concerned about issues on US soil, Apple has global
jurisdictions and markets to consider. At a time when US technology companies are
alreadyon their back feeton privacy and security issues in Europe and elsewhere, a
future in which governments can compel access to users data on whatever grounds they
see fit would put them at a serious competitive disadvantage.
Moreover, its unclear from the current fillings to what extent the FBI has exhausted all
available means to obtain copies of the information that might currently be on Farooks
device. Theoriginal filingindicates that the phone which is actually owned by
Farooks employer has iCloud backup enabled, the contents of which the FBI could
easily access through existing legal methods.This leaves the particular importance of
direct access to the device unclear.
The All Writs Act the 1789 law upon which the FBIs argument for requesting Apples
help rests only requires that third-parties provide nonburdensome technical
assistance. And given Cooks assertion that the software requested does not exist
today, it seems likely that Apple will avail itself of the final option in Magistrate Sherri
Pyms order, which allows the company to reject it within five business days on the
grounds that compliance with this Order would be unreasonably burdensome.
Clearly, a few hours was more than enough to do so.