FBI Rewrites Apple’s Privacy Policy

By: Doug Mondell

Reprehensible. The shootings that occurred in the California city of San Bernardino are just that. I, along with the rest of America, want to see justice served, and I believe that the guilty parties should be punished for their heinous crime. However, in the search for justice, the United States judicial system is doing something unprecedented. As the Fourth Amendment dictates, searches and seizures of people and their belongings is allowed when the search or seizure is supported by probable cause. The FBI is currently in possession of an iPhone that belonged to one of the San Bernardino shooters. There is no legal issue with the FBI searching this shooter’s phone. The issue is a technical one. The killer’s iPhone is locked with a passcode. No one knows what the passcode is, or at least, no one is willing to share this information if they do know. There is currently no way to hack a locked iPhone, so it would appear that the FBI is out of luck. But, not willing to give up so easily, the FBI asked Apple, the iPhone’s creator, to develop a hack that will allow the FBI to access the data in the shooter’s phone. Apple refused.

 

Again, not to be undone, the FBI went to United States Magistrate Judge Sheri Pym, who agreed with the FBI and ordered Apple to create the hack to the iPhone. Apple still refuses to budge. In a letter sent to their customers, Apple wrote, “the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.” Apple is acting as the Constitution requires by refusing this demand from the district court. If the hack that Apple was being requested to create only gave access to the San Bernardino shooter’s iPhone, this would be an entirely different case. However, the hack wouldn’t just do that. The hack could potentially give the Federal Government, the governments of other nations, criminals, etc., the ability to search the data of any American who uses an iPhone. For reference, the number of iPhones being used in the United States in 2015 was ninety-four million.

 

While the government undeniably has probable cause to search the phone of someone who committed the type of mass shooting that took place in San Bernardino, it does not have probable cause to search the other millions of iPhone users who are law-abiding citizens. Demanding that Apple create the hack being asked for would give people that ability. The Fourth Amendment of the United States Constitution unequivocally forbids it. I am still outraged at the tragic event that took place in San Bernardino. I have no sympathy for terrorists, and I believe they should be punished to the fullest extent allowed by law. However, the privacy of millions of Americans is at stake, and the kind of hack that Apple is being asked to create cannot be undone and could, too easily, fall into the hands of those that would abuse this technology. As this order will most likely be appealed to a U.S. District Court judge, and possibly all the way up to the Supreme Court of the United States, we should be given a definite decision as to the constitutionality of this requested hack.

 

Doug is a Staff Member of the Journal of High Technology Law. He is a current 2L at Suffolk Law concentrating in Trial and Appellate Advocacy. He graduated from The Ohio State University in 2011 with a B.A. in International Studies.

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