Editorial: Constitution can’t fall victim to terrorism
The fight between Apple Inc. and the FBI over access to a terrorist’s phone has created a teachable moment for the U.S. government. Even as this particular issue might be resolved, the episode opened a Pandora’s box for reasonable searches under the Fourth Amendment.
Surely more cases like this one will continue to arise, and it’s critical law enforcement — even the FBI — is allowed to access digital information within the same constitutional boundaries that govern its access to other information.
Apple resisted an attempt by the FBI and the U.S. Justice Department to force the company to hack into its own iPhone operating system. It argued that hacking into San Bernardino terrorist Syed Farook’s phone would allow unprecedented security breaches in iPhones throughout the country — essentially the same as creating a master key to unlock all the safes in America.
The FBI said it exhausted all other means to get into the phone, and that it was Apple’s duty to comply for national security reasons.
But less than 24 hours before a highly anticipated hearing on the case, the Justice Department requested a delay because a third party had found a way to get into the phone.
If that’s true, it’s more of an embarrassment for the government than anything else.
FBI Director James Comey told the Wall Street Journal his agency wasn’t lying when it said it exhausted every avenue before making its request of Apple, and that the third party emerged as a result of the “free market” forces set into action by the high-profile nature of the hacking request.
But why hadn’t the agency looked outside itself before making its demands of Apple?
It seems the FBI’s first thought should have been to engage the smartest hackers in the U.S. and even internationally to crack the phone. Or, perhaps it was doing that and also using Apple’s access as a backup.
Either way, it could have spared the company and the agency a public fight, and would be a more secure way of dealing with the material on the phone. Now potential terrorists and certainly those connected to Farook’s phone are fully aware of efforts to hack it, and no one knows what actions that knowledge might prompt.
The turn of events also raises questions about the FBI’s capability to unlock digital devices of any kind — and whether the agency is prepared to face a future of cyber hackers, digital terrorism and worse threats still unknown.
The Justice Department’s request was based on the assumption Apple was the only entity that could get into Farook’s iPhone. That has now been disproved, which means the entire order should be dropped.
Other industries are required to design systems to work with warrants, which leaves a gray area for rapidly changing technologies such as phones. And with terrorism on the rise, this issue will come up again.
But technology companies shouldn’t have to thwart innovative security advancements in their systems just so law enforcement, typically behind the technology curve, can access it if needed.
Apple has won this round, but the fight between law enforcement, the Fourth Amendment and digital technology is far from over.