Privacy vs. National Security: The Apple Inc., FBI Saga
Student’s Name
Institutional Affiliation
Course
Instructor’s Name
Date
Privacy vs. National Security: The Apple Inc., FBI Saga
The need for federal investigators to unlock a smartphone belonging to a terrorist behind the murder of fourteen people is an understandable task. It is rationale that the government would turn to Apple for help to gain access to one of their products. However, because the tech company has no software to access the encrypted data, the Federal Bureau of Investigation (FBI) applied for a court order that mandates the tech firm to build a custom system that disable security features in the seized mobile phones. Apple has sufficient reason to appeal the secondary request, citing Fifth Amendment violations. A close analysis of the case shows federal investigators and the Department of Justice did not follow due process and might have exceeded their authority. While the government was within its boundaries to request Apple Inc. to create a unique software, it cannot force the company to make the product due to operational interference, lack of due process and because the process is burdensome.
Private companies should not be subject to government bidding in extraordinary circumstances linked to a crime because it is statutorily unauthorized. The Fifth Amendment emphasizes the need for due process of law when private individuals or entities provide services to the government (Eckart, 2019). One of Apple’s main arguments is that the government is conscripting it to develop software against its will. Apple cites a due process violation when the DOJ filed the order without providing the tech firm with notice. Apple’s claims are justified because it is unclear whether the DOJ’s approach is consistent with the requirements of an ex parte application (Eckart, 2019). Executive orders must provide a window period for relief for tech firms to consider whether federal requests are burdensome. The period also highlights adherence to due process by providing parties with an opportunity to be heard.
Adherence to due process is weak in the case because the government gave Apple little time and room to ensure autonomy in the software development process. According to a statement released by the DOJ, Apple was pursuing a ‘Lochner-style’ approach where businesses benefit from due process against interference (Eckart, 2019). Critics argue that the executive order did not require the tech firm to operate under the federal investigators (Mukul et al. 2021). At the end of the day, a small Australian firm won the contract. Secondly, Apple was writing a small code for a short period of time without any supervision of federal involvement. Such criticism is incorrect because the single software interferes with Apple’s autonomy. The software can be used to gain access to products and systems using the tech firm’s operating system. Federal systems should not pose a risk to third party operations in such attenuating circumstances.
The government should acknowledge the Bernardino case ruling is an exception that should not be standardized because it sets a dangerous precedence for tech companies. Private firms assisting the government in its intelligence operations puts the privacy of the company and consumers at risk (Eckart, 2019). The Snowden revelations highlighted the government’s warrantless surveillance of innocent civilians. The software used to unlock one phone can be applied to others using the same operating system. Apple announced that it has to change its iPhone settings to prevent competitor firms, such as Cellebrite from circumnavigating password restrictions (Eckart, 2019). Tech firms do not create security measures to frustrate law enforcement but to protect consumers. Weak encryption is a risk to everyone, including intelligence agencies. Once a back door exists for secondary access, not only officers and security experts will access personal user information but also criminals and despots.
There are other means for the government to use to collect evidence. Writing new code has implications that extend beyond one smartphone or digital system. Apple cite First and Fifth Amendment violations because writing code is akin to instructing a computer what to do or say (Selyukh & Domonnoske, 2016). Therefore, the action is the same as speech. As opposed to an executive order, federal investigators should acquire express consent from the tech firm to access and use its code. Consent is part of the larger need for autonomy, to ensure the federal request does not pose any risk to operations, including the risk of interference. Consent also means there are no civil liberty violations associated with privacy rights.
Matters of due process, privacy, surveillance and civil liberties among other competing interests are significant issues to open societies. Law enforcement has a genuine need for information, but past events highlight national security interests can result in the violation of civil rights. Even if the government succeeds in mandating Apple to create the software, it will not be the end of the story. Including third-parties in public service without following due process undermines the spirit of healthy private-public partnerships. Federal investigators need to accept the reality that encryption technology will always be one step ahead of the law. Therefore, the constitution will have to hide the criminality of a few to safeguard the security and privacy of the many. Government should turn to its own intelligence agencies to create software for hacking private products.
References
Eckart, J. (2019). The Department of Justice vs. Apple Inc.: The great encryption debate between privacy and national security. Catholic University Journal of Law and Technology, 27(2), 3-69.
Mukul, K., Rao, K. M. & Kundu, S. (2021). Individual freedom vis-à-vis integrity of the state: A study with reference to Apple iPhone. Emerging Economies Cases Journal, 3(1), 16-20.
Selyukh, A., & Domonnoske, C. (2016, February 17). Apple, The FBI and iPhone encryption: A look at what’s at stake. NPR (National Public Radio), https://www.npr.org/sections/thetwo-way/2016/02/17/467096705/apple-the-fbi-andiphone-encryption-a-look-at-whats-at-stake