The questions surrounding the conflict between the federal government and Apple are profound and serious. Each side makes powerful claims, and the matter deserves the court challenge that seems inevitable.
Better still would be for Congress to deal with the issue, though it shows no stomach for the fight. And given Congress’ inability to do much of anything valuable lately, there’s little prospect that it will act on a matter that is of obvious importance to the country.
The immediate issue is the FBI investigation into the terror attack that killed 14 people in San Bernardino, Calif., in December. Investigators want to examine the iPhone used by one of the two attackers, but the encryption technology used by Apple makes that virtually impossible.
The government went to court and, this week, a federal magistrate ordered Apple to help the FBI hack into the terrorist’s iPhone. The company is balking, saying that the process could then be used on any iPhone. That makes every iPhone less secure, which hurts company goals, especially at a time of government surveillance, and could also leave the devices prey to hackers from other countries, including China.
Both parties have obvious legitimate interests, but the fact is that the government’s request is narrow. It is seeking information only from this one smartphone. What is more, it is pursuing the information in an appropriate way, involving the courts and due process of law.
This is a matter that was bound to be litigated, and the case of foreign-inspired terrorism provides a solid foundation on which to pursue it. But it’s not a slam dunk.
Americans do have a right to privacy. It can be overcome through warrants and other legitimate means, but the right deserves fierce protection. The government must show that forcing a private company to act against its own business interests and potentially to compromise the privacy of tens of millions of Americans is so compelling that it not only trumps that right, but that there isn’t some other way to achieve its legitimate goals.
It may be able to make that argument in a case such as this. The work phone belonging to one of the San Bernardino killers, Syed Rizwan Farook, may contain information about where he and his accomplice wife traveled, who they contacted, even what other plots could be in the works.
The investigation into a mass murder that incorporates the disturbing issue of international terrorism clearly includes matters of national interest.
Of course, the government helped create its own mess in this matter. The National Security Agency’s secret surveillance program was unknown until exposed by Edward Snowden, the former NSA contractor. The program, itself, wasn’t necessarily the problem, but the fact that it was implemented without any kind of public discussion over the issues involved guaranteed a negative reaction, including distrust of government promises of discretion.
This is a different time in American life and it is insufficient – and dangerous – to reject all government surveillance as inappropriate or overly intrusive. Privacy is important, but so is security in a world where a few suicidal people can murder dozens or even thousands.
That’s the conflict at the heart of Apple’s resistance to the government’s demands that it compromise the privacy of its own customers.
The issue is complicated and, unless Congress wants to pass a law to clarify the matter, then it will be up to the courts to sort out questions of vital national importance. That’s the court fight ahead and, if ever one were appropriate, this is it.