MIKE DEUTSCH – “We will strike America at its heart.” – ISIS militant Al-Ajkrar Al-Iraqi.[1]
Less than two years after declaring a caliphate in June 2014, Islamic State of Iraq and Syria (“ISIS”) members and supports have carried out more than seventy terrorist attacks in twenty countries outside of Iraq and Syria, killing at least 1,200 people and injuring more than 1,700.[2] The United States and its allies face a grave threat from ISIS, as evidenced by the November attack in Paris and the six attacks on North American soil.[3]
The most devastating ISIS-inspired attack on American soil occurred on December 2, 2015, when husband and wife terror team Tashfeen Malik and Syed Rizwan Farook killed 14 civilians and injured 21 others in San Bernadino, California.[4] The death toll could have been even higher. Malik and Farook left behind three pipe bombs intending to kill first-responders, but thankfully, the bombs malfunctioned.[5]
Here’s what investigators know so far about the two attackers: Tashfeen Malik posted a pledge of allegiance to ISIS on Facebook while the attack was occurring[6], and Syed Farook may have been planning a terror attack in the United States as early as 2012, but he and his accomplice “got spooked” after several nearby terror-related arrests.[7] There are, however, still many unanswered questions about the attackers, including whether they collaborated directly with members of ISIS or received help from anyone either inside the United States or overseas.[8]
To help answer these questions, the Federal Bureau of Investigation (“FBI”) sought Apple, Inc.’s (“Apple”) help in examining the iPhone used by Syed Farook.[9] The FBI needs Apple’s assistance to disable a feature that automatically clears an iPhone of all of its data after ten incorrect password attempts.[10] Investigators are hoping to launch a “brute force” attack that would allow them to try an unlimited number of passwords without the phone automatically deleting all of its stored data.[11] Such brute force attacks are typically carried out using a powerful computer that enters millions of password combinations until it finds the correct one.[12]
The FBI needs Apple’s help because iPhones are designed to run only iOS software created by Apple.[13] This software contains an encrypted Apple signature key for verification.[14] Thus, even if investigators were able to construct a version of iOS, it would not operate on Farook’s iPhone because it would not have Apple’s encrypted signature key.[15]
Apple has refused the FBI’s and a federal court order to help crack the phone, arguing that such a software amounts to a “backdoor to the iPhone.”[16] Apple CEO Tim cook states that this software “would have the potential to unlock any iPhone in someone’s physical possession,” and he worries about it falling into the wrong hands.[17]
Apple’s fears are both misguided and grossly exaggerated. First, the FBI seeks Apple’s assistance with this one particular phone and “does not, as Apple’s public statement alleges, require Apple to create or provide a ‘back door’ to every iPhone.”[18] Additionally, as the Justice Department states, the requested assistance “does not give the government ‘the power to reach into anyone’s device’ without a warrant or court authorization.”[19]
Concerns over the government gaining control of such a device are unfounded. The Justice Department does not want or need control over the software. Instead, the Justice Department maintains that “the software never has to come into the government’s custody.”[20] Indeed, the Justice Department states that, “Just as with Apple’s already-existing operating systems and software, no one outside Apple would have access to the software required by the order unless Apple itself chose to share it.”[21] Apple will thus be able to retain control and security of the software, so even if it did create a “back door” (which it does not), Apple, not the government, would have control over it.
Furthermore, the software Apple is apparently so concerned about may already be in existence. Since 2008, Apple has worked with federal investigators and has unlocked at least seventy iPhones in similar cases.[22] It is fair to question, then, whether Apple’s present opposition is due to a principled privacy policy stance, or whether it is due to Apple’s concerns over its bottom-line. The evidence supports the latter.
In a legal brief filed in a similar case in New York last year, Apple wrote that unlocking the iPhone in question could “substantially tarnish the Apple brand” and “[t]his reputational harm could have a longer term economic impact beyond the mere cost of performing the single extraction at issue.”[23] As the Justice Department argues, Apple’s refusal to help in the San Bernadino case “appears to be based on its concerns for its business model and public marketing strategy.”[24]
Apple’s marketing strategy does not outweigh our national security needs. It is time for Apple to reverse course and aid the FBI’s San Bernadino investigation.
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[1] John Bacon and Oren Orell, ISIL”s Haunting Threat: ‘We will strike America at its heart,’ USA Today (Feb. 19, 2016), http://abcnews.go.com/US/doj-escalates-battle-apple-san-bernardino-shooters-phone/story?id=37056775.
[2] Ray Sanchez, Tim Lister, Mark Bixler, Sean O’Key, Michael Hogenmiller and Mohammed Tawfeeq, ISIS Goes Global: Over 70 Attacks in 20 Countries, CNN (Feb. 17, 2016), http://www.cnn.com/2015/12/17/world/mapping-isis-attacks-around-the-world/.
[3] Id.
[4] Id.
[5] Everything we know about the San Bernadino terror attack investigation so far, Los Angeles Times (Dec. 14, 2015), http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html.
[6] See, e.g., Greg Botelho, San Bernadino shooting investigated as ‘act of terrorism,’ CNN (Dec. 5, 2015), http://www.cnn.com/2015/12/04/us/san-bernardino-shooting/.
[7] See, e.g., Greg Botelho, Catherine E. Shoichet and Pamela Brown, San Bernadino shooting investigation: Past plot and recent loan are latest clues, CNN (Dec. 9, 2015), http://www.cnn.com/2015/12/08/us/san-bernardino-shooting/.
[8] Mike Isaac, Explaining Apple’s Fight With the F.B.I., The New York Times (Feb. 17, 2016), http://www.nytimes.com/2016/02/18/technology/explaining-apples-fight-with-the-fbi.html?_r=0.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Tim Cook, A Message to Our Customers, Apple, Inc. (Feb. 16, 2016), http://www.apple.com/customer-letter/.
[17] Id.
[18] Krishnadev Calamur, Apple vs. the FBI: The Justice Department Fires Back, The Atlantic (Feb. 19, 2016) http://www.theatlantic.com/national/archive/2016/02/apple-fbi-san-bernardino/470169/.
[19] Id. (emphasis added).
[20] Id. (emphasis added).
[21] Alina Selyukh, DOJ Lays Out Its Legal Case for Why Apple Should Help Crack An iPhone, NPR (Feb. 19, 2016), http://www.npr.org/sections/thetwo-way/2016/02/19/467385553/doj-lays-out-its-legal-case-for-why-apple-should-help-crack-an-iphone.
[22] Shane Harris, Apple Unlocked iPhones for the Feds 70 Times Before, The Daily Beast (Feb. 17, 2016), http://www.thedailybeast.com/articles/2016/02/17/apple-unlocked-iphones-for-the-feds-70-times-before.html.
[23] Id. (emphasis added).
[24] Calamur, supra note 18, at 2.
