Joel Reidenberg was featured in the New York Times Room for Debate page about Apple’s refusal to comply with a federal court order to help the F.B.I. unlock an iPhone 5c used by one of the shooters in the San Bernardino, Califonia, killings in December.
With one of the San Bernardino attacker’s locked iPhone in hand, the F.B.I. obtained a court order compelling Apple to provide “reasonable technical assistance” to help them hack the iPhone setting up a confrontation over the legitimacy of government calls for data access.
But the scope of the court’s order raises two questions.
First, must Apple write new software to disable the iPhone’s security features or does Apple only have to provide the F.B.I. with sufficient existing technical information and technology to unlock the device? The order is unclear. If the order compels Apple to write new code that weakens its security system, the decision is troubling. The government already has extensive capabilities to devise its own decryption tool, and Congress has declined to create any obligation to make smartphones wiretap ready.
If the order only requires Apple to divulge existing technology, then Apple’s opposition is unwarranted.
Second, does the court order create a general security vulnerability that may be wrongfully exploited in the future? The order tries to avoid this problem by stipulating that the assistance should be unique to the specific iPhone and that access to its content may be performed by Apple at an Apple facility.
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If neither circumstance applies, then unless Congress says otherwise, the equipment manufacturer should not be compelled to assist.
The bottom line is that the government should have an ability to compel companies to unlock encrypted devices for access to evidence of crimes, but should not be able to force companies to build electronic skeleton keys, new access tools and security vulnerabilities.
