Introduction
Law enforcement agencies (LEAs) have, since the 1990s, contended that the increasing adoption of advanced technologies could facilitate the criminal organization’s communications through encrypted and secure communication channels, and ‘going dark’ in the process (Kehl et al., 2015). Cutting-edge technologies have undoubtedly had a significant impact on the state powers’ ability to gather and efficiently analyze large volumes of data on its citizenry to help deliver better services. Nonetheless, criminal organizations have also leveraged the power of such technology to either perpetrate crimes or evade detection as it is challenging to intercept digitized means of communications from a technical viewpoint (Açar, 2017). The revelations of Edward Snowden and the rising privacy concerns have brought scrutiny to client-to-client models, with technology companies shifting more towards centralized cryptographic foundations, reducing client control over private communications. Hence, it becomes impossible for service providers to comply with judicial orders to intercept and gather content data. Also, service providers do not suffer liability for criminal activity conducted through their products or services since they are unaware of what happens on their platforms. The current report seeks to establish whether the government can force tech companies, such as Apple in the recent Pensacola shooting, to help it break into the phones of known/ suspected terrorists.
Read more: Sample Paper: State Surveillance and Dissent: Apple Inc’s Encryption DilemmaCase Description Background
According to the New York Times, a member of the Saudi Air Force training to become a pilot shot and killed three people at the Naval Air Station Pensacola before officers responding to the scene gunned him down (Mazzei et al., 2019). For many, this was a tragic event involving wah Attorney General William Barr considered to be an act of terrorism shortly after the incident. However, for companies like Apple Inc., this was an all too familiar cycle, which could reignite a fight between the Silicon Valley giant and law enforcement over access to encrypted technology. The Attorney General, shortly after the incident, asked Apple in an unusually high-profile request, to provide the FBI with access to the two phones used by the gunman. The request was an escalation of the continuing fight between the Justice Department and Apple, pitting personal privacy against public safety (Benneri, 2020). Barr remains outspoken about his belief that tech companies should provide access to encrypted devices when requested by law enforcement, and Apple has been steadfast in its position that it not only will not comply, but it cannot.
The Pensacola case resembles the 2016 dispute between Apple and the FBI over the iPhone of the man who shot and killed 14 people in the San Bernardino, Calif. In that case, there was a dead gunman, a court authorization for access to the phone, and an early stalemate between law enforcement and Apple (Nicas & Benner, 2020). Apple defied the court order, obtained under the All Writs Act, to unlock the device belonging to the shooter. The FBI eventually sad that it managed to decrypt the phone through a private vendor, that cracked the phone’s security. Apple designs its devices with encryption, meaning that the company itself cannot access the personal information on locked iPhones without the user’s password. Apple said that it would have to build special software to help retrieve the data uploaded to the company’s servers – essentially a backdoor into Apple devices. Apple was opposed to this backdoor approach, worrying that they would be creating a vulnerability that hijackers and cybercriminals would take advantage of if they complied with law enforcement demands (Baily, 2017).
It is not difficult to argue that Apple should do everything in its power to help fight crime and terrorism. To that end, the company already turned over the data it had in its possession from the Apple iCloud servers of the Pensacola shooting. However, both sides have a lot at stake in this battle. Law enforcement has a vested interest in fighting crime and preventing terrorist attacks within U.S. soil – there is no doubt about that. The question remains whether tech companies will be willing to build encrypted devices with a backdoor to them. The dilemma here will be that a backdoor entry into tech devices will undermine the very security that encryption seeks to uphold for users, which is a selling point for most tech giants like Apple, and one that helps maintain its reputation in the digital era. The dispute highlights what scholars refer to as the “Going Dark” debate, where technology continues to frustrate law enforcement’s ability to investigate crimes and national security threats, even with the intervention of the judiciary (Dunlap Jr., 2016). The dilemma for the company is whether to protect its consumers or support the FBI’s broader mission to protecting the American people in general. The answer lies therein the question of whether granting access to the government and any unintended third-parties could create a slippery slope leading to massive state surveillance and suppression of dissent.
Discussion
The primary argument made in this article is that Apple’s compliance with the government’s request to break into phones of known/suspected criminals or terrorists has far wider-reaching implications than solving that particular crime to which they are interested in the moment. First of all, Apple’s issue with the requests made by law enforcement during the San Bernardino and Pensacola investigations has to do more with security rather than privacy. According to a statement issued by Tim Cook after the San Bernardino incident, the CEO affirmed that Apple has a relentless desire to protect the data security of “hundreds of millions of law-abiding people” that use Apple products (Baily et al., 2017). Complying with the FBI’s request to create a backdoor to their devices would ultimately make Apple product consumers less secure and vulnerable not only from unauthorized access by government officials but malicious individuals as well.
Nevertheless, the current focus is on the government and the possibility that they could take advantage of this vulnerability to spy on its citizens. The Apple-FBI case stands in context with Edward Snowden leaks of 2013, which uncovered the extensive internet surveillance capacities of the NSA, and its targeted operations against encryption systems, which companies like Google and Apple actively pursued (Schulze, 2017). According to the literature by Schulze, the NSA implanted software programs to decrypt communication protocols, such as Bulltrum, which offered a backdoor into the HTTPS encryption offering unprecedented access to internet routers. Additionally, Snowden made it known that the NSA made significant attempts to infiltrate encrypted Virtua Private Network connections used by large companies to send secure files, as well as the Onion Router or TOR network, which is efficient for reducing eavesdropping. Snowden’s leaks enhanced public awareness regarding the importance of encryption and data security of digital devices. Other than that, it also made it apparent that government agencies were secretly and actively pursuing surveillance on American citizens (Schulze, 2017).
The reason why the FBI’s request to have Apple grant it backdoor access into the company’s devices in the name of national security resonates with the techniques and methods Snowden’s leaks brought to light. Backdoor access would allow the government to have unrestricted access to user devices without their knowledge in the name of national security. However, the debate over potential security threats is still relative. Despite the good intention by the FBI or the government, consumers face greater risk under compliance by companies such as Apple. Such actions undermine not only users’ gadget security but also that of the data contained on these devices. Hence, the company’s breach of device security for the government would raise issues over data privacy, which Apple prides itself on in the tech market. The Apple-FBI showdown illustrates the impact of strong security and privacy policies by tech companies can have on preserving freedom of expressions (Brier Jr., 2017).
The analysis of virtue as a habituated disposition to act correctly suggests that agents can leverage their moral perception, and the role played by experience in moral judgment to make reliable decisions and act in the right way (Sampaio Da Silva, 2018). The FBI request to Apple to allow it to bypass security into its devices goes against the company’s core values to provide excellent and secure services to its customers. The primary concern for security mostly must relate to the growing concern of the technology community that complying with such a request would set the precedent from which the government would initiate policy reforms dictating what security features to integrate into their devices. An example is data localization laws, which undermine data preservation by allowing the government greater control and manipulation of communications within a geographical area. It leads to private companies becoming more vulnerable to censorship and surveillance demands by the government (Brier Jr., 2017). Ideally, such reforms favor law enforcement and at the expense of consumer data, which would then blur the line between authorized access for crime and national security investigations and the alternate and malicious intent by government officials. From a rational point of view, unrestricted access to a user’s phone would lead customers away from their products, which is what keeps the company sustainable – revenues from Apple product sales (Dunlap Jr, 2016).
Criticism
Perhaps the most prominent argument in support of the government’s access to encrypted device information is the provisions made in the All Writs Act. The government has occasionally resulted to using the All Writs Act to compel third-party assistance in their “… respective jurisdictions and agreeable to the usage and principles of law” (Potapchuk, 2016). Government supporters on the issue may argue that the failure to comply with court orders under the All Writs Act may contribute to the proliferation of a tangible threat by making it more difficult and expensive for law enforcement to investigate and prosecute criminals. However, the government’s citation of the All Writs Act to support the notion that Apple should comply with the FBI’s requests is itself flawed because the law came to pass before the era of telephones and computers to address the encryption of iPhones and Apple-related devices. The application of the law in the Apple-FBI case is somewhat awkward and unconvincing. The All Writs Act can only apply when there are no other statutes relevant to the facts and circumstances of the case. In this case, the Communications Assistance for Law Enforcement Act (CALEA) preempts the government from using the All Writs Act. The statute allows the government to intercept wire and electronic communications and call-identifying information under certain circumstances.
Second, critics may also argue that Apple’s insistence on putting the security of its customers first puts the company’s profits ahead of the safety of individuals in general. A popular notion that may arise out of the battle between Apple and the FBI is that those who support Apple means that they support terrorists. The notion that American citizens must support the government’s demand for Apple because they will help criminals communicate without surveillance is misguided. Whether or not Apple allows the government access to their devices or creates software that helps create vulnerabilities into their systems will not eradicate crime or prevent terrorist activities. Criminal organizations have, for centuries, found ways to communicate without detection, and allowing entry into their iPhone-facilitated communications cannot help put an end to them. Although, it may help to relieve some case backlogs depending on the information contained in phones confiscated from criminals. Regardless, such an edict could be the government’s way of legalizing their current ability to surveil individuals without their realization.
Conclusion
The current research’s focus is to evaluate whether governments should force companies like Apple to break into phones of known/suspected criminals and if such actions would create a slippery slope that eventually leads to massive state surveillance and suppression of dissent. The report is in support of the latter. First of all, Edward Snowden’s leaks have a huge significance in awareness of data security and privacy in the present digital era. People have a host of personal information on their phones, which is why they have a preference for secure devices to hold or share such information. The government’s request for backdoor entry could not only make user devices less secure but also exposes user information to the government. Given the unrestricted and unauthorized access conducted by the NSA, according to Snowden, there is no telling what the government would be willing to do with a vulnerability in Apple’s devices. Furthermore, there is the uncertainty also as to whether this will be a one-off event, to help with alleged ‘national security’ concerns, and will not lead to further policy decisions to determine how companies can operate and design their gadgets. The decision to comply with the FBI demands associates with much uncertainty, considering that Apple always provides information accessible to them from the servers. Hence, the report supports the idea that the government’s compelled access to Apple products is a slippery slope.
References
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Baily, C., Garland, W., Nitchals, L., & O’Rourke, J. (2017). Apple, Inc.: Data privacy and a request from the FBI. The Eugene D. Fanning Center for Business Communication, Mendoza College of Business, University of Notre Dame.
Benneri, K., (2020). Barr Asks Apple to Unlock Pensacola Killer’s Phones, Setting Up Clash. Nytimes.com. https://www.nytimes.com/2020/01/13/us/politics/pensacola-shooting-iphones.html. Accessed 15 May 2020.
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Kehl, D., Wilson, A., & Bankston, K. (2015). Doomed to Repeat History? Lessons from the Crypto Wars of the 1990s. Open Technology Institute Policy Paper, June.
Mazzei, P., Gibbons, T., & Hauser, C. (2019). Trainee on Military Base Mounts Deadly Attack. Nytimes.com. Retrieved from https://www.nytimes.com/2019/12/06/us/nas-pensacola-shooting.html. Accessed 15 May 2020.
Nicas, J., & Benner, K. (2020). F.B.I. Asks Apple to Help Unlock Two iPhones. Nytimes.com. https://www.nytimes.com/2020/01/13/us/politics/pensacola-shooting-iphones.html. Accessed 15 May 2020.
Potapchuk, J. L. (2016). A Second Bite at the Apple: Federal Courts’ Authority to Compel Technical Assistance to Government Agents in Accessing Encrypted Smartphone Data Under the All Writs Act. BCL Rev., 57, 1403.
Sampaio Da Silva, R. (2018). Moral motivation and judgment in virtue ethics. Philonsorbonne, (12), 107-123.
Schulze, M. (2017). Clipper meets Apple vs. FBI: a comparison of the cryptography discourses from 1993 and 2016. Media and Communication, 5(1), 54-62.
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