Government Attack On The Fourth Amendment, FBI vs. APPLE – Part 2

By Roger J. Katz, Attoney at Law and Stephen L. D’Andrilli.
In this three part article, the Arbalest team examines what is truly at stake in the demand by the FBI that APPEL break is iPhone encryption.

New York, NY  -(Ammoland.com)- The Fourth Amendment right of the people to be free from unreasonable searches and seizures is under attack by the federal Government – most noticeably and ominously since enactment of the Patriot Act.

Recently, the FBI demanded that Apple Computer, Inc., — maker of the iPhone — unlock the encrypted data held in the iPhone of one, Syed Rizwan Farook.

You may recall that Farook, an American citizen and Islamic jihadist, together with his wife, a foreign born, non-American Islamic jihadist, went on a murderous rampage, murdering 14 American citizens and injuring another 22 in San Bernardino, California. This occurred late last year. The Government has finally acknowledged that this incident amounts to an Islamic terrorist attack on U.S. soil.

The FBI has obtained Farook’s iPhone but, the content is encrypted. The FBI has said that, despite several attempts, it has been unable to unlock the phone to obtain access to the content. The FBI has therefore enlisted the aid of Apple to assist the FBI in its efforts but complains that Apple has been uncooperative. In a lawsuit filed against Apple the Government contends, as reported in mainstream newspapers, that Apple refuses to assist the FBI in unlocking the content of the iPhone.

The implication is that, through its failure to comply with the FBI’s order, Apple Computer is deliberately preventing the federal Government from performing a basic function on behalf of the American people, as expressed in the Preamble to the United States Constitution: “We the People of the United States, in Order to . . . provide for the common defence . . . do ordain and establish this Constitution for the United States of America.”

Is this simply an instance of a major computer company inappropriately and inexplicably refusing to assist the federal Government in the Government’s efforts to provide for the common defence of the Nation as the mainstream media, on behalf of the FBI, asserts, or is there more to this?

The federal Government, through its docile and compliant servant, the mainstream media, has certainly sought to create the impression that Apple Computer’s actions are unlawful and even unpatriotic because Apple is thwarting the Government’s legitimate attempt to fight terrorism on behalf of the American people. But Apple Computer takes strong exception to the charge. In an open letter  [https://www.apple.com/customer-letter/] posted on the internet.

Tim Cook, Chief Executive Officer of Apple, sought to exemplify and clarify the issues, saying in principal part:

“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.

We were shocked and outraged by the deadly act of terrorism in San Bernardino last December. We mourn the loss of life and want justice for all those whose lives were affected. The FBI asked us for help in the days following the attack, and we have worked hard to support the government’s efforts to solve this horrible crime. We have no sympathy for terrorists.

When the FBI has requested data that’s in our possession, we have provided it. Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal.

We have great respect for the professionals at the FBI, and we believe their intentions are good. Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.

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. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. 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.

The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.

We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.

While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.”

Tim Cook, on behalf of the Company, claims that the Company has cooperated with the FBI in the past and desires to continue to do so. But, according to Tim Cook, the FBI is demanding of Apple something much more ambitious than the FBI would wish for the American public to know – and something clearly dangerous to preservation of individual rights and liberty.

According to Tim Cook, the FBI is ordering Apple not merely to assist it in unlocking the contents of one iPhone – that of the dead Islamic terrorist – but to develop a new operating system that, once designed and installed in all iPhones would allow the FBI to gain access to encrypted data from every iPhone the Company produces. If Tim Cook’s account of the matter is true, then the Government is demanding that Apple create – in common parlance – a backdoor key.

This key would enable the federal Government to peruse, at will, the content of every iPhone that Apple manufactures. Encryption, then, can be easily defeated. If encryption can be easily defeated, then the very import of encryption ceases to exist and no iPhone is secure.

Millions of people, both in this Country and worldwide, use iPhones for work and business. Apple’s customers rely on Apple to provide them with security that is impenetrable to anyone other than the owner of the phone. Apparently, Apple has been very successful on that score. But, if the FBI is requiring Apple Computer to compromise the security of every iPhone it makes – although superficially claiming interest in obtaining data from only one iPhone – then the FBI’s ambitions are far-reaching and truly ominous. The FBI is treading uncomfortably on the Fourth Amendment.

To say the FBI can be trusted to use a backdoor key sparingly, wisely and consistent with our system of laws and with the U.S. Constitution, strains credulity and is naïve in the extreme, especially in light of the FBI’s past mistakes. Moreover, as Apple has pointed out, and as computer engineers from other firms concur, the creation of an iOS that bypasses security invites hacking by criminal gangs and foreign governments.

It is difficult enough today for the average person and businessperson to protect his or her computer devices from the myriad viruses, worms, spybots, ransomware, and other assorted malware that daily infect computers. This has become a disturbing fact of life. Customers who spend hard-earned money on a particular smart phone, tablet, PC, and on other computer devices depend on the reputation and integrity of the manufacturer to provide the customer with a reliable device and a secure device.

That the FBI would require – as Apple Computer contends – a computer device maker to compromise the integrity of all of its iPhones, not only encroaches on the Americans’ Fourth Amendment privacy interest but is also harmful to Apple’s business.

The FBI has, apparently, nothing to say, about protection of the public’s Fourth Amendment privacy right, but has much to say about the idea that Apple Computer’s real interest in this matter extends merely to business concerns and maintaining its Market share. The mainstream media, on behalf of the Government, has pressed the FBI’s accusation, in lengthy news reports and commentary, pointedly attacking Apple, arguing that Apple’s reluctance to give the FBI what it wants – a backdoor key – is predicated on shallow business concerns. Even so, protection of free market capitalism is not to be construed as an improper, if unstated, motive of Apple; for our economic system, predicated on free market capitalism, is a bulwark of our free Republic.

Moreover, even if – as the FBI asserts, and, as the mainstream media echoes on its behalf, and, as the public may reasonably infer and concede – Apple Computer is more interested in preserving its market share, that it fails to assert, than in protecting, as it overtly states, the iPhone user’s privacy and security – consistent with “the right of the people to be free from unreasonable searches and seizures,” – the fact that the Fourth Amendment is implicated at all is enough to warrant the American public’s grave concern in what the FBI demands of Apple. Thus, Apple’s underlying business motive in the case at bar is at most a tangential issue here, designed to divert the public’s attention away from the federal Government’s penultimate goal of creating “the surveillance society” as a conjunct of America’s “Police State.”

If, in fact, as Tim Cook says, the FBI is demanding a backdoor key to unlock encrypted content on every apple iPhone, then the federal Government is in the process of undertaking a frontal assault on Americans’ Fourth Amendment “right of the people to be free from unreasonable searches and seizures,” because the sanctity of and security of sensitive personal and business data would be placed in jeopardy if Apple Computer is ultimately compelled to create a backdoor key for the FBI. Apple’s iPhones would be open to continuous unlawful federal government surveillance and to breaches by foreign governments and criminal organizations as well. Of that, there can be no doubt. One’s ability to confidently and securely protect his or her private communications and sensitive data from prying government eyes and from the nefarious actions of criminal organizations would inevitably be severely weakened.

Of course, the federal Government has been attempting for some time now to compel all computer companies to provide the government with backdoor keys to enable Government to unlock, as it wishes, encrypted content held in every American’s computer devices.

So, we must ask: is the federal Government, disingenuously, insidiously, even arrogantly, using the Farook episode to garner public support for further unlawful Government intrusion into the private lives of Americans, under the guise of providing for the common defence of the Nation, but contrary to the precept of the Fourth Amendment?

If so, this is not something new. The public has seen this before. For the same technique has been used by antigun groups as well when seeking to garner public support for legislation to weaken the Second Amendment right of the people to keep and bear arms. Then, as now, the mainstream media willingly trumpets the call of those forces that seek to upend the Bill of Rights. The antigun groups jump on one horrific incident of gun violence, perpetrated by one or a few lunatics, or criminals, or Islamic jihadists and, through that one, particular incident, coax the public to support measures that further weaken and eventually curtail the Second Amendment right of the people to keep and bear arms.

Of course curtailment of a fundamental right and basic liberty is presented to the public, not as a loss but as a benefit, namely that, for the good of society – the collective, the masses – an American must surrender his or her firearms.

If you do not buy into that – and no sane, rational American should – you should not buy into the argument proffered by the FBI that, for the good of society, you must allow Government to pry into your sensitive private data – into your personal and business life – and trust that the Government will use good judgment and refrain from doing so except when necessary “to provide for the common defence” of the Nation.

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