The issue is that a “federal magistrate has ordered Apple to help the FBI unlock the iPhone belonging to Syed Rizwan Farook, the ISIS-inspired fanatic who, along with his wife, murdered 14 people in San Bernardino.“
From this premise, the article in Commentary magazine goes on to making a number of technically and legally incorrect statements, which only confuse the issue and the small fraction of the public who might still care about the issue of privacy in the face of increasing government efforts, on any excuse, to erode what little privacy we have left.
According to various versions of the story, what the FBI wants and the judge ordered Apple to do is to
(1) design a “back door” into the iPhone, or
(2) design a program to break Apple’s encryption scheme, or
(3) write a new operating system so future iPhones could be accessed by the government.
According to a hacker as reported by Michael Savage today, it is technically possible to
(4) write code to hack Farook the Jihadist’s iPhone, but no other iPhones.
What I have NOT heard from anyone is that
(5) the FBI simply wants help with cracking THIS one particular iPhone and none other.
The only one thing that is consistent in all these stories is that Apple does NOT have the two encryption keys that an iPhone user needs to secure his data, and Apple does not have the tools to retrieve either one — as the result of a conscious and deliberate design choice.
I for one cannot believe that it would be impossible to break the encryption on that one iPhone, given the expertise and resources available to Apple. As long as the FBI is willing to pay for the effort I see no problem with that, except to ask, why doesn’t the FBI or the NSA already have the resources to do so? I am sure everyone has heard stories since the creation of DHS and the NSA that they can hack anything at will.
So what’s s the problem?
The problem is that the FBI does not just want help with breaking into this one particular iPhone. They want Apple to depart from their business model and design a tool to break into ALL iPhones, or redesign the operating system for ALL iPhones with a “back door” so that government snoops can come and go at will.
Notice that no one ever mentions tying this “back door” to a court order as required by the 4th Amendment.
Notice that no one mentions wanting only the metadata (which is what they have been trying to reassure us that it’s the only thing the NSA ever wanted and collected); no, they want the actual CONTENTS.
This is where my libertarian hackles are raised and put me squarely on the side of Apple. This is not about corporate business models, corporate profits or corporate greed or even national security. This is about the constitutional guarantees of our civil rights as Americans. It’s as simple as that.
The national security issue is also simple. Given that the attack itself and the fate of the attackers had made the news worldwide, and the time that has passed since then, it is highly unlikely that the specific information on that iPhone is of any actionable intelligence value. Whatever data is on that particular iPhone, it had to come to it from somewhere over a wifi or cell network. That information is in the unencrypted metadata — who called whom and when, who accessed which IP address and when, who owns that IP address, who else is using that IP address, etc. By law, that information is available from that iPhone’s internet and cell phone service providers; and if we are to believe the news, the NSA already has it anyway. That metadata is sufficient to support good old fashioned intelligence and detective work to identify the suspects, and good old fashioned spy and police work to locate them, and neutralize them or round them up.
As details of this case have made evident, no one associated with the San Bernardino jihadists was innocent; the plot was an extended-family affair. In this and many similar plots, there were no innocent bystanders. The participants in the conspiracy are foreign irregular combatants, not criminals, and therefore we do not have to build an airtight criminal case against them. Just remove them from circulation for the duration of the hostilities that they have declared against us; that is, lock them up and throw away the key. Or keep them until they might become useful to us in some prisoner swap or something. Until that time comes, the FBI, CIA, DHS or whoever can interrogate them as they wish. Having declared by their actions their allegiance to a hostile foreign power and ideology, they are not American citizens and they have no American civil rights; it is the height of suicidal insanity to claim that they might.