The Case of Bill Barr vs. Apple
The advance of digital technology is creating new ethical challenges across society, and here we go again in the battle between law enforcement and the privacy of encrypted cell phones in a democracy.
Attorney General William Barr demanded Monday that
help the U.S. government unlock two iPhones in its terror investigation of the Saudi air cadet who last month killed three sailors at a Navy training base in Pensacola, Florida. “This situation perfectly illustrates why it is critical that the public be able to get access to digital evidence,” Mr. Barr said.
The AG’s implication is that Apple is withholding information critical to a government terror investigation. But then the FBI also boasted on Monday that it has been able to obtain many leads from other sources including social media, interviews and 42 terabytes of digital media. That includes a social media post by the shooter on 9/11 last year that “the countdown has started.”
Apple says it responded within hours to the FBI’s first request for data on Dec. 6, the day of the attack. It says it responded to six subsequent requests by providing information stored on its cloud servers, account information and transactional data for multiple accounts. The company says it didn’t learn until Jan. 6 of a second iPhone associated with the probe, and two days after that it received a subpoena.
Apple continues to cooperate, but what it won’t do is create special software to break into an iPhone so the FBI can obtain information stored on the device. Nor will it devise a “backdoor” for law enforcement. Mr. Barr says this refusal means that Apple and other American tech companies are subordinating national security to commercial interests by refusing to assist law enforcement.
Apple is no doubt looking out for its commercial interests, and privacy is one of its selling points. But its encryption and security protections also have significant social and public benefits. Encryption has become more important as individuals store and transmit more personal information on their phones—including bank accounts and health records—amid increasing cyber-espionage.
Criminals communicate over encrypted platforms, but encryption protects all users including business executives, journalists, politicians, and dissenters in non-democratic societies. Any special key that Apple created for the U.S. government to unlock iPhones would also be exploitable by bad actors.
If American tech companies offer backdoors for U.S. law enforcement, criminals would surely switch to foreign providers. This would make it harder to obtain data stored on cloud servers. Apple says it has responded to more than 127,000 requests from U.S. law enforcement agencies over the past seven years. We doubt Huawei would be as cooperative.
Apple’s security features also make its phones more attractive to foreign customers. Requiring Apple to build vulnerabilities into its phones would make it less competitive and aid Chinese competitors like Huawei and ZTE, which the Justice Department has charged with violating U.S. sanctions.
In any case the FBI has apparently found a work-around to unlock encrypted phones. Four years ago the Obama Justice Department sought a court order to force Apple to unlock an iPhone used by the San Bernardino terrorists. A private company eventually helped the government break in. The FBI has since paid more than $1 million to a private company to extract data from encrypted phones.
The Israeli forensics firm Cellebrite last year trumpeted a new product that would allow it to unlock and extract data from all Apple and high-end Android devices. Competition among forensic firms is making it cheaper and easier to unlock phones. The National Security Agency last year expressed concern that encryption may not be strong enough to withstand advances in quantum computing. Politicians also keep howling that tech companies don’t do enough to protect user privacy.
Mr. Barr’s job includes protecting Americans from terror attacks and criminal networks, and we sympathize with his concern that encryption could slow an investigation when minutes matter. But the answer is for Congress to work with him to forge a compromise that balances private and government interests. That’s what happened in 2018 when Congress created a process for law enforcement to obtain data stored on servers overseas.
In the meantime, Apple doesn’t deserve to be treated like a public enemy.
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