— J. Tomás Delaney L.
The writ that orders Apple to unblock a cellphone — by request of the Federal Bureau of Investigations (FBI) — and Apple’s refusal to comply, has shined the spotlight once again on the debate of which fundamental right should prevail: Security or Privacy.
On February 16th, Magistrate Judge Sheri Pym ordered the technology giant to provide the FBI with “reasonable technical assistance” to unblock the iPhone of one of the San Bernardino shooters, Syed Rizwan Farook, so that the FBI can continue their criminal investigation and verify whether the device contains information regarding the planning of the shooting. Apple refuses, arguing that said technology doesn’t exist. Moreover, in order to comply with the court order, Apple would have to create a new operating system specifically designed to circumvent iPhones’ security features, which would put at risk the privacy and personal information of millions of iPhone users around the world.
Apple’s arguments are simple. On the one hand, it is being asked to give something that it does not have, since this system doesn’t currently exist, and thus compliance with the court is materially impossible. And on the other, if the order was for Apple to design this system, there would be no way to comply without potentially violating the privacy rights of millions of other people. That is to say, the implications go beyond this particular case.
«…THE FINAL RULING OF THE COURTS WILL SET FORTH A PRECEDENT […] OF WHETHER THE DUTY OF THE GOVERNMENT TO GUARANTEE THE SECURITY OF ITS CITIZENS OUTWEIGHS THE INDIVIDUAL RIGHT OF THOSE CITIZENS TO THEIR PRIVACY…»
The arguments of the FBI are equally simple. Apple is not being asked to unblock all the iPhones in the world, but one in particular that is in possession of the government, whose owner is dead and no longer has privacy rights. Additionally, the FBI request was made with the purpose of cooperating with a criminal investigation that may ultimately save thousands of lives. It is a matter of national security.
Apple’s CEO, Tim Cook, said that although, technically, it is possible for Apple to design this new operating system, its creation is simply “too dangerous”, and basically Apple itself is being asked to find the way to hack the millions of iPhones that currently exist, all of which contain personal information of its users. Automatically, there would be a “back door” to unlock any iPhone in case the system falls “in the wrong hands”. Although the FBI says it would only be used for this specific case, there is no way to guarantee it.
In a pleading filed as a response to Apple’s objection to the court order, the Justice Department said that Apple only seeks to protect its sales, and that the marketing interests of one sole company are being placed before the national security of the United States.
The truth is that the result of this debate goes further than Farook’s cellphone. The final ruling of the courts will set forth a precedent not only of whether the duty of the government to guarantee the security of its citizens outweighs the individual right of those citizens to their privacy, but also on how much a company can grow for the courts to consider that protecting this one company’s customers is the same as protecting society as a whole. Ironically, in this case it seems that it is Apple who is standing up in the defense of the rights of individual citizens, and not the government.
This case is expected to be taken all the way up to the U.S. Supreme Court.
DelaneySilva | Legal Blog 