The 4th Amendment to the Constitution protects the citizens of the USA from unlawful search and seizure. In other words, the FBI or any other law enforcement agency is barred by law from entering your home to search and/or seize evidence without your permission or a court order to do so. That right extends to personal property such as computers, laptops, tablets, and mobile phones. Thus, one might assume that Apple is only pointing to Bill of Rights and saying we don’t want to be a party to violating these rights. But that is not the case. The FBI has obtained a search and seizure warrant for the iPhone of Syed Farook, so a search of the phone is legal. Nevertheless, Apple is still resisting.
Well, let’s try an example that might illustrate Apple’s dilemma. Let’s suppose you own a building that you lease out to a third party. The business of that party is so private that part of the lease agreement stipulates that the tenant has the right to change the locks and not supply the landlord (you) with the key. One night the tenant disappears into thin air and foul play is suspected. The sheriff comes to you for the key to the building which, of course, you do not possess. A local locksmith is summoned but fails to open the lock. Now the sheriff demands that the lock manufacturer not only open the lock but give him and his deputies the tools to do so in the future. The lock manufacturer refuses on the grounds that such an act would release proprietary expertise and also potentially endanger customers who had purchased his locks in the past. In addition, there is no legal basis to compel him to do this.
Similarly, this is at the heart of the iPhone conundrum. Apple has no desire to be unhelpful, but at the same time, they wish to defend the proprietary iPhone technology that protects the privacy of their customers. All recent versions of the iPhone are programmed to delete their data if someone tries to access the phone using several incorrect passwords. In this instance, the FBI has demanded that Apple do three things: 1) disable the feature that wipes data after ten unsuccessful password attempts; 2) disable the time delay between each password attempt, and 3) create a way for the FBI to connect the iPhone to a supercomputer churning out possible passwords. Thus, the FBI is asking that custom iOS software be developed to access Farook’s iPhone 5C, and Apple is rightly concerned that creating such software could potentially be modified for use on other iPhones. The larger issue, from a legal perspective is this: If Apple complies with the FBI’s request, they will be setting a dangerous legal precedent. The Department of Justice has at least nine other iPhones they would like unlocked. Why should the FBI’s assurances of “one-time use” be met with anything other than skepticism?
The All Writs Act of 1789 has been invoked to allow a federal judge to order Apple to unlock the subject phone. In a letter addressed to its customers, Apple CEO Tim Cook wrote that if Apple concedes to this demand, the “implications are chilling.” What is to stop the government from reaching into any private device you own? After Edward Snowden revealed the extent of government snooping, Apple gave the public a devise that was unassailable—as Cook says, they put the control of privacy into the customer’s hands, not Apple’s. Now the government is demanding that Apple essentially take that control back or create technology that cedes it to government authorities. And why? Because the FBI wants access to information that might be on one phone, a third phone that wasn’t even the primary phone used by Farook or his wife—those phones were destroyed along with their computer’s hard drive. If this phone indeed contained sensitive information, chances are it would have been destroyed as well.
The outcome of this particular situation may well change our rights and limit the extent of our right to privacy. At the same time, the threat of terrorism must be acknowledged. Consequently, the question is, should individual rights take precedence over national security? I would like to think that there are no bad guys on either side of this dilemma, but the lawless antics of the Obama Administration make me question the FBI’s agenda on this issue.
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