An Apple a day keeps the FBI Away.

By Jackie M. Stebbinsphoto-jackie-m-stebbins-attorney-at-law

Unless you’ve had no access to any major news source in any medium, you’ve surely heard about the United States Magistrate in California ordering Apple to assist the FBI and the United States Department of Justice in unlocking the iPhone of San Bernardino shooter Syed Rizwan Farook.  The FBI sought information on Farook’s iPhone as it investigated the December 2, 2015, shootings in California that left 14 people dead in what was deemed a terrorist act.  The phone was password protected and law enforcement couldn’t get in to discover important information.

Those of us who were alive on and before September 11, 2001, know that that date changed the way the United States views, responds to and attempts to preempt, acts of terrorism on U.S. soil.  Those of us who were also alive before the advent of smartphones, the iPhone and tablets, also remember a world of land-line phones, car-phones that were in bags, or flip cell-phones with the only ability to quickly text by use of “t9” texting (which wasn’t that quick).  If you were used to a land-line phone and now have a smartphone, you can appreciate just how much smartphones have revolutionized the way our world works and the way we live.  You can search the internet, never have to memorize a phone number ago, talk-to-text, use Facebook, book an Uber ride, check your bank statements and so much more.  All good and lawful ways to use a cell phone, right?

Many of us password protect our smartphone for fear that we may drop it, lose it or allow it to fall into the hands of someone who would attempt ill-will against us.  Because so many of us store incredibly private and important information on our phones: passwords to our on-line accounts, apps linked to our financial information, information about our children, etc. we know how important it is to lock up that cell phone.  The type of private and confidential information stored on our smart phone is information that we used to tuck away in drawers at home and at work.  But now, it is all right there, on that tiny little cellular phone/computer, which is an incredible extension of our life and our privacy.  We like knowing that our smartphones are privacy protected, right?  But what about when “bad” people use smartphones for illegal activity, should they be protected?

When the FBI went knocking at Apple’s door with the court order for Apple’s compliance in helping to crack Farook’s phone, Apple took a hard-nosed approach to the Government and federal court order and said: no.  Apple did not take its opposition to the court order lightly and in a statement it issued on the matter, said: “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.”

 Just think of the safety and privacy concerns into what the Government was asking Apple to do.  Furthermore, think of the Constitutional safeguards that citizens have against the government as it relates to our privacy in our homes and personal effects.  The Fourth Amendment to the United States Constitution is a bedrock principle of law in criminal defense practice and for the security of citizens against government intrusion.  The right for an individual to be secure from the government’s unlawful search and seizure of you and your things is a right we are fond of, even if we’ve never been prosecuted in a criminal action, but have only seen it on television or in the movies.

So why couldn’t the FBI just get a search warrant from that same Magistrate and move on?  Routinely, law enforcement will obtain a search warrant to “rip” a person’s cellular phone when the person has been arrested and the phone seized.  By law enforcement first obtaining the search warrant before looking for the incriminating information, the person is free from an unlawful search and seizure and there shouldn’t be any problems with the use of evidence obtained from the phone.  Or, if the person agrees, or is a cooperating witness/Defendant in the case, the person can just hand over the password and the phone can be ripped with consent.

But what happens in a case like this, where the phone is password protected and the phone owner is deceased or isn’t cooperating in the case?  Should a private corporation like Apple, with its own security concerns and business practices, be forced to develop the software, or give out their top-secret proprietary information, to unlock a password protected phone?  Was it in the United States’ best interest to move the Court to force an American corporation to divulge that type of information to the FBI in the name of the fight against terrorism?  If Apple had agreed, what would that have meant for all of us and our confidential information that we store on our phone – would there be hackers ready and waiting to emulate what Apple did to unlock the phone?  Would all of our smart phones then be at risk for hackers ready and waiting to steal our private information?  Or are we already susceptible to hackers who are out there ready and willing to crack the codes that companies like Apple invent and do we take daily risks storing sensitive information on our smartphones?

There are so many questions and probably no perfect answers as to what would have happened, had the FBI with the help of NSA and the CIA not been able to hack the phone on their own.  Apple had its story and stuck to it; defending its position and arguing that the Government never should have attempted to force it into a position that it found objectionable in the first place: “From the beginning, we objected to the FBI’s demand that Apple build a backdoor into the iPhone because we believed it was wrong and would set a dangerous precedent. As a result of the government’s dismissal, neither of these occurred. This case should never have been brought.”

Do you feel better today that Apple opposed the Court’s order – or worse?  Do you believe that Apple should have cooperated with the Government in the name of obtaining more information about terrorism – or do you believe Apple did the right thing and protected all of our interests in our sacred smartphones?  How about that the FBI, NSA and CIA didn’t even need Apple’s help, they did it on their own – are you happy or sad that the Government has incredible technology and power at its disposal in the fight against crime and terror?

What’s the right answer to the questions I posit?  As a typical lawyer, the best answer I can give is, “It is gray area.”  All we know is that no legal precedent was set for the scope of the Government’s power to compel an unwilling private company to cooperate in a criminal investigation.  Guess we’ll have to wait and see if the issue arises again.