On December 2, 2015, the San Bernardino shooters killed 14 people, injured 21 others, and shattered the lives of countless Americans. The FBI obtained a warrant to search the iPhone of Sayed Farook, one of the alleged perpetrators; however, the phone’s data is encrypted, and the FBI lacked the password to access the data. The FBI cannot simply guess the password, because the entries must be input by hand, each incorrect entry imposes a delay, and after 10 tries, the phone will erase the encrypted data. On February 16, 2016, a federal judge ordered Apple to create software that disables that security feature so that a computer program could input unlimited passwords quickly. Apple’s CEO has issued an open letter explaining that Apple will not comply with the order because of the threat Apple claims it poses to its customers’ security, privacy, and constitutional rights.
Although this situation urges strong gut reactions, a full review shows that there is no satisfying answer to this conflict. The FBI absolutely should get access to the data on just this one phone, and the order clearly attempts to limit the “hack” to just this one phone. At the same time, the technology doesn’t work that way—although it might be difficult, once Apple has produced a hack for one phone, any government, criminal, or foreign intelligence agency could modify it to secretly hack millions of phones. Our Supreme Court unanimously held that mobile data cannot legally be accessed without a warrant. We already know that government agencies obtain secret warrants and conduct both legal and illegal warrantless surveillance, and it is questionable whether we should trust law enforcement with a tool that would enable law enforcement to engage in more illegal searches. Furthermore, law enforcement’s self-assessment is that faulty investigative techniques, such as the investigator’s own tunnel vision, are critical in wrongful convictions, of which we know only the tip of the iceberg. The only real solution to law enforcement’s investigative failures is scrutiny, which does not flourish when we hand investigators the tools they need to reinforce their preconceptions, however genuine and well-intentioned, in secret.
For now, tech companies will do their best to throw away the keys to their customers’ information, and the government will do its best to obtain keys that give it broad access. Ultimately, there will probably be legislation about this issue, and the Supreme Court will have to decide whether technology companies can be forced to keep a set of keys on hand, and who exactly gets to touch those keys.
For now, law-abiding citizens under investigation should remember a few things:
- There’s absolutely nothing you can say or do to change the investigator’s preconception that you are guilty.
- Don’t talk to the police. Insist on speaking with your attorney.
- If law enforcement doesn’t have a warrant, don’t let them in, don’t give them your phone, don’t give them anything they ask for.
- Get an attorney.