Apple, the FBI, and the Court of Public Opinion


As nearly everyone already knows, the FBI claims it will protect us from terrorists if we, the American public, agree to let them have access to suspect smartphones and other devices. It is simply part of the ongoing saga of individual freedom and privacy vs. national security. To achieve this security, the FBI wants Apple to compromise one of its iPhones; one that was used by a terrorist.

On the surface, this argument seems pretty straightforward. Most people don’t even understand what all the fuss is about.“What does one iPhone have to do with me? Why is this even such a big issue?” The reason for this indifference is that, as in many legal matters, the real battle is in the fine print. For example, were the FBI to get such an exploit, they could easily back-engineer it to do the same on any other iPhone they may want to get information on. Even if they don’t physically get the exploit from Apple, they have established a precedent. From this point on, all tech companies must assist the government when the  government deems it necessary. The only real question is: Is this a positive or negative development?

There are already ways to put backdoors on an iPhone. Jailbreaking exploits are readily available online. Jailbreaking amounts to installing your own backdoor so that you can have total control of your iPhone. So why can’t the FBI just use these to gain full administrative control of the phone? Certainly their partners at the NSA could help them on this. But it appears that to jailbreak this phone you would first have to sign in with a password. After jailbreaking, you wouldn’t need to worry about the password. It’s the password that the FBI can’t get around. It is important to note that jailbreaking an iPhone leaves it vulnerable to cyber attacks.

It appears, to most of the general public, that the FBI is going through all of this trouble in the hopes of finding critical national-security-threatening information on this phone. There is certainly no guarantee that the information they find on the phone will add significantly to what they have already dredged up through other investigative means. Wouldn’t phone service providers already have much of this information? The FBI has already mined the iCloud account associated with this phone. They had a legal search warrant to do so. True, iCloud backup for the phone was suspended after October, but the FBI must have at least a list of contacts that they could hack (and probably have hacked) for information. According to the court order that the government filed against Apple, the FBI suspects there are messages on the phone that were not stored in the cloud. I still find it hard to believe that this information is all that vital and would contain information that they didn’t already know. If, as they claim, the phone was used to communicate with some of the victims prior to the crime, wouldn’t such text conversations also be preserved on the victims’ phones?

The FBI claims that it only wants Apple’s help. According to the court order, Apple may “maintain custody of the software, destroy it after its purpose under the Order has been served, refuse to disseminate it outside of Apple, and make it clear to the world that it does not apply to other devices.” Does this mean that Apple can, unsupervised, extract the data and hand it over to the government? That would seem to be fair enough. The government claims that the only reason that Apple will not help the FBI is because it would ruin their marketing. That is, it would show customers that they really don’t have the privacy that they think they do and that the government, at any time they believe necessary, can call on their assistant, Apple, to search their phones. This, no doubt, factored into Apple’s decision, but there is more to it than that.

The government has wanted a backdoor to the iPhone (and all smartphones) for some time now. FBI Director, James Comey, has repeatedly called for an end to encryption. As far back as 2014, he maintained that “encryption threatens to lead all of us to a very dark place.” He went so far as to claim that if smartphone manufacturers did not build a backdoor into their products, “Congress might have to force this on companies. Maybe they’ll take the hint and do it themselves.”

But in 2014, public sentiment was against this idea. If the FBI wanted to make a case for mandatory backdoors, they would need to make it when public sentiment favored it. As the graph below shows, there has been a sharp rise in people who are willing to give up their freedom for security. This trend, as seen in the graph below, began with the Paris terrorist attacks and increased even further after the San Bernardino attacks. Thus, there is no better time than the present for the FBI to play its “mandatory backdoor = security” card.

apple fbi

Now, I should admit up front to not being a big Apple fan. It’s too much like a cult group for me. Their new product launches are more like Scientology conventions than anything else. They could unveil a left-handed iPhone and the crowd would cheer wildly as if they’ve experienced the second coming. I was also not a fan of the pseudo-everyman, laid back showboating of Steve Jobs or his equally casually attired mimic, Tim Cook. That being said, I admire the stand Tim Cook is taking against the government in this case. Someone had to draw the line. Someone had to start the fight that was going to come anyway. Sure, the government is not really asking for a backdoor, they are just asking for a foot in the backdoor…at least for now.

As I mentioned above, the FBI maintains that Apple is only concerned about marketing and that, by cooperating with the FBI, Apple will somehow undermine their marketing strategies. Yes, it would be a letdown to users looking for top-notch security (and not all users who want privacy are evil) to learn that there, in fact, was a method to compromise their iPhones. If Apple can figure out a way to compromise their phones, others can certainly do it as well. In short, iPhones would be back on the cyber criminal’s list of vulnerable devices.

Nonetheless, depending on the will or whim of the American people, the time may be approaching when backdoors are required on all devices. What the technologically naïve fail to understand is that a backdoor is, in fact, an open door. It is an open door for every criminal or foreign adversary to get into an endpoint device, such as a smarphone or tablet. Once they compromise an endpoint, they can gain administrative rights and leverage those to penetrate any network to which the device may be connected. This includes government networks. Remember the 21 million government employees compromised in the OPM breach? Yes, it could be that the government is making itself more vulnerable in its efforts to protect national security and, in fact, instead of making the US more secure, may be making it less secure.

Let’s face it. The government has not had a good record of protecting its information. Businesses are routinely hacked. Medical records are stolen on an almost daily basis. Ransomware has been dangerously successful. And all of this is happening without the presence of built-in backdoors. Does the government really believe that requiring manufacturers to install backdoors will somehow, magically, improve this situation? In fact, installing backdoors on all devices would be a cyber criminal’s dream. Hackers around the world would applaud any efforts to have mandatory backdoors installed on all devices.

However, it still may be true that the American public is ready to sacrifice freedom for security. A recent Pew poll showed 51% siding with the FBI in this dispute, while only 38% supported Apple’s position. So it seems that they may now feel comfortable with allowing the government to search their devices whenever the government thinks it might be necessary. Yet, no matter what the majority of citizens may think, this attitude would eventually run up against higher principles stated in something called the Fourth Amendment, which prohibits unreasonable search and seizure of property by the government. This amendment was primarily written and sponsored by James Madison over two centuries ago. Of course, there was no way Madison could have predicted the modern row between Apple and the FBI, but this does not make what he said any less valid on the ideological level. In fact, Madison made a subsequent statement that seems remarkably applicable to this case when he wrote, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” I think that Tim Cook and those defending Apple against the government would have to agree with Madison on this. Apple, however, is apparently not going to fight the government on the basis of the Fourth Amendment but on the First Amendment, saying that this takeover would be an assault on free speech. I personally feel this line of attack, no matter how legally valid, is a little too obscure, at least to the American public, and it is they who hold the destiny of the US, and Apple, in their hands.

That is the crux of the problem for Apple. The ultimate decision in this case will be the one that emerges from the court of public opinion. It is relatively easy for the FBI to raise the specter of fear and the promise of keeping the nation secure. It is far more difficult for Apple to explain the technological ramifications of installing backdoors on their devices.

It is often, and correctly, stated that democracy depends on an informed electorate. This being the case, Apple needs to spare no expense in getting their message to the general public. They may have to abandon the technical explanation approach for one with more emotional appeal. If they truly believe that this decision will alter the fundamental principles upon which the American nation was built, they must carefully spell this out to those who will ultimately decide this case; the American public. This is the time for them to display their true marketing prowess. If they do not make such an attempt, then the FBI is correct. Their refusal to help the FBI is nothing more than the fear of losing a marketing advantage and the money associated with it.


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