Why I now support Apple against the FBI

What you need to know:

  • The US Federal Bureau of Investigation (FBI) reset the iPhone’s password. This mistake rendered the phone unable to back up unless its password was entered.
  • The San Bernardino Case, now known as FBI v. Apple, is a short name for the convoluted “matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300.”

It all began 10 weeks ago, when 14 people were killed and 22 others badly injured in a terrorist attack perpetrated by a young married couple in their late twenties.

Syed Rizwan Farook and Tashfeen Malik, from Redlands, California, were legal immigrants of Pakistani origin, who met over the Internet.

The couple  massacred their victims at a San Bernardino county office, Farook’s workplace, during an end-of-the-year luncheon.

NBC writers Jon Schuppe, Liz Chuck and Helen Kwong say this attack was the second-deadliest mass shooting in California after the 1984 San Ysidro McDonald's massacre, and the deadliest in the US since the 2012 Sandy Hook Elementary School shooting.

It was also the worst terrorist attack in the US since September 11, 2001.

Farook and Malik escaped the scene in a rented car, but were chased. A gun battle ensued and the two were killed. Farook’s iPhone 5C was recovered from the car.

The US Federal Bureau of Investigation (FBI) reset the iPhone’s password. This mistake rendered the phone unable to back up unless its password was entered.

In despair, the FBI got a court order requesting Apple to create a "backdoor" to look inside. Apple claims that the FBI knows not what they are asking.

The FBI has gone to court to force Apple to decrypt the iPhone. The law behind the fight is 227 years old, the US “All Writs Act” of 1789. The FBI wants to make an unprecedented use of this law to expand its authority.

'JUST BUILD A BACK DOOR'

Apple is sticking to its guns, claiming that this is the price of privacy and the foundation of freedom. Apple’s CEO, Tim Cook, declared, “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

Apple’s rivals, Microsoft, Google and Facebook, who know what is as stake, have rallied in support of the iPhone maker. As for the Justice Department’s decryption request, the most vocal supporter is Republican hopeful Donald Trump, who has called Apple “disgraceful”. The irony is, he did so from his iPhone.

The San Bernardino case, now known as FBI v Apple, is a short name for the convoluted “matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300.”

FBI v. Apple is pushing the boundaries of law, regulatory powers, privacy, freedom and rights, probably beyond known limits. Many things will change thereafter.

FBI v. Apple will affect anyone who uses a phone, regardless of who the maker is, for better or for worse. This matter will spill over from the California Central District Court to the Ninth Circuit Court of Appeals, and quite probably to the Supreme Court.

At first, the FBI appeal made sense to me. “Just build a backdoor for this one phone”. But alas, Apple would not give in. They seemed to prefer terrorism to security, privacy and life itself. It looked absurd, until the matter touched me.

My iPhone was stolen from my hands at 8pm, in a traffic jam on Uhuru Highway. I knew that if the three different sets of cameras installed by the county on Uhuru Highway were working, this would not have happened.

Now I’m with Apple, and with Microsoft, and with Google. I have accessed my iPhone remotely and locked it, making it impossible for anyone else to use it. It is useless to the thieves and cannot be broken into or sold. The police have the IMEI and serial numbers.

Sooner or later, this phone will be found, unless the thief decides to throw it away. Every time he or she switches it on it can be traced. It has been moving uselessly around Moi Avenue from stall to stall, with the thief probably hoping that some local genius can achieve what the FBI did not manage.

Apple knows that a backdoor means changing the whole spectrum of phone security and privacy. An avalanche of ad-hoc requests will come from governments all over the world for any phone to be decrypted.

Decryption could be used as a genuine means to trace criminals and terrorists, but it may also be used to subdue and survey political opponents, or social and economic “enemies” of the system. Too much is at stake.

TODAY FBI, TOMORROW ISIS

In countries where corruption thrives, where security agents may be compromised, there will be plenty of tango. Both the good and the bad will dance together and gain valuable access to private, classified information.

The FBI plea puts too much at stake. We cannot measure the consequences of this just one "backdoor".   

In his public letter, Tim Cook, explains: “Smartphones, led by iPhone, have become an essential part of our lives… For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.”

Cook also argues that "Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case". Apple has made its engineers available to advise the FBI, for they have no sympathy for terrorists. The intensions of the FBI agents may be good, but building a "backdoor" will create a precedent that no one can control.

Today it may be in the hands of the FBI and tomorrow in ISIS’s hands, for example.

Cook declares that the FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor.

While the government may argue that its use would be limited to this case, there is no way to guarantee such control. Once created, the technique could be used over and over again, on any number of devices.

In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.

I have asked myself many times this week, after losing my phone, if I would be happy and ready to share my password with the security agencies in the country. The answer is a resounding "No" and this is what the FBI is asking Apple to do.

As Tim Cook says, “this demand would undermine the very freedoms and liberty our government is meant to protect”.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi