Tim Cook is absolutely right in trying to prevent the government from compelling Apple to assist in cracking the iPhone that was issued to Syed Rizwan Farook by San Bernardino County.
This explains why:
San Bernardino County had the responsibility to manage their phones via a centrally controlled management environment so that San Bernardino County could lock, save, manage, change the password, transfer data, etc.
San Bernardino County made the decision to abdicate that responsibility. That fault rests squarely on San Bernardino County.
Since San Bernardino County failed the people its supposed to serve, the story should end there. The phone is inaccessible due to failed governance of San Bernardino County.
There were also several other opportunities to gain access to the phone, that the FBI squandered. One example is that the County of San Bernardino did know the password of Syed Rizwan Farook’s iCloud account, and because they knew that they gave it to the FBI when asked and FBI changed the iCloud password, before the iPhone automatically backed up. If that password wasn’t changed, the FBI could have connected the phone to a known WIFI connextion that the phone was prevoously clnnected to, so that the iCloud backup would have automaticlaly run, then the FBI could have gotten the all the data off of iCloud via the backup.
So before we start, lets place responsibility for this issue on both San Bernardino County and the FBI. If those two agencies didn’t act so irresponsibly, we never would be in a situation where the FBI is ordering Apple to help them break into the iPhone.
Now, in the situation of this iPhone, the FBI is not trying to solve a crime. Their actions are not part of normal “evidence gathering” in an attempt to implicate a suspect and prove a particular suspect was the person who committed the crime.
The suspect is already dead and has already forensically admitted to committing the crime.
So if what the FBI wants to do with the phone is not part of the normal process of gathering evidence to prove a particular suspect committed a crime, then what is it?
This act, the desire of the FBI to hack this iPhone, is akin to running an Intelligence Operation.
An Intelligence Operation is substantively, structurally, and categorically different than a Criminal Investigation.
In a Criminal Investigation, law enforcement is tasked with collecting evidence in order to prove that a suspect committed a crime.
In an Intelligence Operation, law enforcement is tasked with going out into the world and looking at whatever they want to look at (within the law) to see if they can figure out who is bad and who they might want to take a closer look at. In an Intelligence Operation, you are not necessarily tasked with solving any particular crime, you are only tasked with gathering as much information about whatever you can. Sort of like the NSA when it’s stated mission was to “Collect All Data”.
We already know the suspect, Syed Rizwan Farook, committed the crime. That closes the case and stops the criminal investigation. The suspect is dead, and both forensic evidence and all the witnesses universally name him as the perpetrator. This means the crime has been solved, and the FBI must now go on to the next case.
It also begs the question of why is the FBI is trying to do is something outside of and above its crime solving process. Other agencies have intelligence gathering roles. The roles are separate. One agency has a crime fighting role, and another agency has an intelligence collection role. So, why is the crime fighting agency trying to insert itself into an intelligence gathering role? If anything it should be the agency whose role is intelligence collection that is making the case for the iPhone. But since that other agency has no legal way to walk into a courtroom and say “we want to look at this iPhone because we want to know who he talks to” – because the judge would laugh them out of the courtroom, that other agency has asked their friends in the FBI to use this case as the entry point to Intelligence Collection. See what happened?
The government wants to see who else may have associated with Syed Rizwan Farook, similar to how it wanted to know who Al Capone and other criminals and terrorists of by gone era’s associated and interacted with. Such a desire on the part of the government is a very noble goal and they should pursue that goal within the power limiting framework that is already in place. They should not be allowed by a judge to break through that framework. Congress needs to pass a law and the president must sign it, if America wants to change that framework. Using an unelected judge to make laws from the bench against the will of the people is something the government keeps using to take more and more power. The way the FBI is trying to do it is patently wrong and Apple is correct in its opposition.
In a free society the goal of wanting to know who speaks and meets with whom must be balanced with the right of citizens to protect themselves from government intrusion.
In the 1980’s and 90’s most criminals and terrorists used code words and pay phones. They also used in-person meetings at secret locations and often communicated with letters that would then be burned upon receipt.
How could the government read the letters that were already ashes?
How could they see who attended secret meetings when there were no video cameras on street corners, and they didn’t even know the location of the meeting?
How could the government listen to the calls that were made to and from random pay phones, unless they targeted a specific individual, and followed them to listen in?
They could not, and that’s the point.
Without hacking this iPhone, the FBI is no worse off than it has been for the past 60+ years.
However, once they compel Apple to open this up, the FBI just expanded their reach in unprecedented ways that exponentially grows their surveillance and intelligence collection capabilities.
Unless the government specifically obtained a warrant in advance to tap a specific pay phone, they would never be able to determine what was said or who called whom and when.
Unless the government specifically targeted a specific person for investigation in advance, nobody would be able to observe in person meetings at secret locations, nor would the FBI be able to read letters that have already been burned to ashes.
So then, where does the iPhone fit into all this? How should we understand it?
The correct way to interpret and understand the iPhone used by Syed Rizwan Farook, is to interpret it as being no different than any of those things: (1) un-wiretapped pay phone, (2) or an in-person secret meeting with no witnesses, (3) or a pile of ashes that was at one time a secret letter.
The FBI never had that information. Just because the information exists or existed, does not give the FBI the right to collect it.
Interaction by the FBI with the iPhone outside of the traditional criminal investigative framework described above, expands government power exponentially into an Intelligence Operation. It’s completely different and separate and must be treated as such.
Now, many say that whatever tool Apple creates, would just be used on this one iPhone.
Anyone who understands anything about technology knows that is not true. Once such a tool exists, it could very easily be used on any iPhone. There is no technical reason or legal reason that it would not be. Technically, all the FBI or Apple would need to do is make a small change to the program’s source code, and it would work on a different iPhone or any phone. Criminals would eventually get their hands on it and would modify it to work on any iPhone.
But, rather than focusing on these nuances, lets return to the real issue.
Why is the FBI trying to run an Intelligence Operation?
Why is it not satisfied with its law enforcement role?
If the FBI is allowed to get its way and run an Intelligence Operation on this iPhone today, what is the next power it will want and get tomorrow?
Where does that power end?
Who will end it?
How do we really know that?
As long as the people and lawmakers continue to allow the government to use Judges to legislate from the bench, the government will always be able to do whatever it wants.