Reference no: EM133257463

Discussion Case: To Lock or Unlock Your Phone: Personal Privacy or National Security In 2015, Syed Rizwan Farook and Tashfeen Malik, a married couple, opened fire at an office party in San Bernardino, California, killing 14 people and injuring 22. Law enforcement officials believed these were acts of ideologically motivated terrorism. A few hours later, Farook and Malik died in a shootout with police. The subsequent Federal Bureau of Investigation (FBI) probe led them to Farook's iPhone 5C, which had been issued by his employer, the county government. Although county officials gave the FBI permission to examine the phone, they did not have Farook's passcode. The phone had a feature that would automatically erase all stored data after 10 unsuccessful password attempts. The FBI then asked Apple, maker of the iPhone, to help them circumvent the customer's data encryption. But the company refused. Apple CEO Tim Cook claimed that consumer privacy must be respected. He argued that compliance with the FBI request "would violate [Apple's] First and Fifth Amendment rights: it would compel Apple to write computer code that undermines the company's views on consumer security and privacy." The FBI maintained that the government had an overriding interest in obtaining information on the phone to protect the public from further acts of terrorism. During the Farook investigation, FBI director James Comey explained, "There has to be some solution that will allow us with lawful authority to be able to have the company unlock the device. [W]e have to find a way to help these companies understand what we need, why we need it, and how they can help, while still protecting privacy rights and providing network security and innovation." A harsh critic of Apple's position, Senator Tom Cotton of Arkansas, expressed the opinion that "Apple chose to protect a dead terrorist's privacy over the security of the American people." Apple's refusal was based on the opinion that to comply with the FBI's wishes would require Apple to create a separate operating system for Farook's phone and all future versions of the iPhones. The new system, which would run parallel with the existing software, would not have the same level of security and privacy protections. Once the parallel operating system was created, contended Apple, criminals and foreign governments could circumvent the security of any phone simply by typing in the device's identification number. Apple's CEO (unlike his predecessor Steven Jobs, who had avoided weighing in on political or controversial issues) said that the company saw privacy as a fundamental human right and one of its core values. "We will not shrink from this responsibility. We need to decide as a nation how much power the government should have over our data and over our privacy," said Cook. Nearly all the world's smartphones run on software developed by Google or Apple. According to court records, Google had been ordered to help federal agents open cellphones in seven different states. Although the outcomes of these specific cases were not publicly known, federal prosecutors said that until late in 2015, when Apple began resisting such efforts, it was routine for judges to approve such requests. Eventually, the FBI's request came before the courts. The Justice Department argued that its request was limited to Farook's phone and it was not trying to set a legal precedent, but it also admitted that there were 13 other pending cases in which the government was seeking court orders to force Apple to help it extract data from iPhones. In February 2016, a federal judge ordered Apple to help the FBI circumvent the passcode protection system on Farook's phone based on a broad application of the All Writs Act of 1789. This act afforded the federal government widespread authority to access information based on national security. Apple's Cook said the company would oppose the order. In a strongly worded letter to Apple customers posted to the company's website, Cook called the order "an unprecedented step which threatens the security of our customers" with "implications far beyond the legal case at hand." In a court filing, Apple claimed, "This isn't a case about one isolated iPhone. No court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it." The day before the FBI director and Apple's top lawyers were to testify before Congress, a federal judge in New York sided with Apple in a related case. Magistrate Judge James Orenstein rejected the Justice Department's argument that the 18th century All Writs Act gave prosecutors the authority to compel Apple to help investigators bypass the passcode-protection system on an Apple iPhone seized in a drug investigation. He said the critical issues of 21st century privacy and technology should be decided by today's lawmakers, rather than by reinterpreting an old law. Around this time, the media reported that an outside party had demonstrated to the FBI a possible method for unlocking Farook's iPhone that, if successful, would eliminate the need for assistance from Apple. "This suggests that the very thing that Apple feared already exists in some form and it exists outside the walls of Cupertino [Apple's home]," said attorney Edward McAndrew. A month later, the FBI announced that it had cracked Farook's iPhone and was dropping its legal case against Apple. A Justice Department spokesperson said, "While this particular phone is no longer an issue, the broader fight over encryption-protected technology is likely to continue. It remains a priority for the government to ensure that law enforcement can obtain crucial digital information to protect national security and public safety." And the controversy may intensify in the future. FBI director Comey announced in April 2016 that the secret technique used to unlock Farook's iPhone 5C, for which the FBI reportedly paid more than $1 million, would not work on newer iPhone models. Two years later, Apple announced that it was planning an iPhone update that would effectively disable the phone's charging and data port-the opening where users plug in headphones, power cables, and adapters-an hour after the phone is locked. This change was seen a direct response to government efforts to unlock phones without the owner's permission. "If we go back to the situation where we again don't have access, now we know directly all the evidence we've lost and all the kids we can't put into a position of safety," said Chuck Cohen of the Indiana State Police task force on Internet crimes against children.

1. In the dispute between the FBI and Apple, which side do you support and why? 2. How would you counter the arguments offered by those on the other side of this debate? 3. Are there any circumstances in which you think the government's right to information should take precedence over an individual's right to privacy? 4. Should any technology firm be allowed to build a privacy protection system that is so impenetrable that it could never be overridden, regardless of the government's need for this information?