It may be the most epic showdown yet in the post-Snowden tech privacy wars: Apple CEO Tim Cook has announced that the company will challenge a judge’s order that the company help the FBI unlock the iPhone of one of the San Bernardino shooters.
New iPhones are end-to-end encrypted, meaning that it’s impossible for anyone, even Apple’s engineers, to open them without knowing the user-created password. So according to the Washington Post, the FBI obtained a court order for Apple to create new software that would “disable the feature that wipes the data on the phone after 10 incorrect tries at entering a password. That way, the government can try to crack the password using ‘brute force’ — attempting tens of millions of combinations without risking the deletion of the data.”
Tim Cook isn’t having it. “The government is asking Apple,” he said in a letter cheered by civil libertarians across the web, “to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals.”
We’re sympathetic to some of Cook’s points. Apple’s tough encryption surely makes user information more secure from hackers and authoritarian governments. And the U.S. government’s request—not that Apple simply open the iPhone (that would be impossible), but that it actually have its engineers write from scratch a complicated new software to facilitate the FBI’s efforts to break into the phone—is quite invasive, and possibly unprecedented.
At the same time, the absolutist position the company is taking does not seem tenable in the long run. We already live in a world where the government and private corporations collect a huge amount of personal information about ordinary people as a matter of course. And now we are being told that the FBI can’t execute a lawfully obtained search warrant on an ISIS-inspired terrorist mass murderer? Something has to give.
Apple is clearly entitled to act in the interests of its customers and shareholders and appeal this ruling. But in the long run, it seems doubtful that the American people will accept the current encryption arrangement. Even before the attacks in Paris and San Bernardino, a majority of Americans wanted the NSA’s warrantless data collection program renewed. Young people are especially supportive of the NSA. Surely there is a compromise position in the encryption debate that would satisfy Americans’ privacy concerns while also making sure that the authorities can access—with a search warrant—the materials used by dangerous criminals.
We’ve written before that Americans “have a 300 year tradition of balancing civil liberties, government power, and the safety of the community through a mix of legislation, judicial oversight, and public debate.” The standoff between Apple and the government is likely to reinvigorate this debate, and possibly produce badly needed legislative efforts to update our surveillance, encryption, and privacy laws. We suspect that the final compromise will be at least somewhat less friendly to privacy hardliners than Apple’s boosters hope.