FBI vs. Apple: Privacy, Encryption, and the Patriot Act

Introduction: Privacy vs. Security in American Public Opinion

America is divided over the tradeoff between personal privacy and security needs. The focus has increasingly fallen on government surveillance, but there are also growing concerns about how data is being used by businesses. The issue came to a head when a federal court was asked to compel Apple to assist the FBI in unlocking one of the phones used by a suspect in the terrorist attack carried out in December 2015 in San Bernardino, California (Rainie and Maniam, 2016). Apple contested the order in order to safeguard the security of other iPhone users. This provoked a national conversation about how far technology firms should go in protecting user privacy while still cooperating with law enforcement agencies.

These unfolding events have shaped how the public feels about the issue. Terrorism generates considerable anxiety. The San Bernardino and Paris shootings, which both occurred in late 2015, are prime examples. According to the Pew Research Center, a survey conducted in December of that year found that the public felt the government's anti-terror policies were not adequately protecting the country, while 28% of respondents expressed concern that those policies were restricting the civil liberties of ordinary people. Two years earlier, there had been widespread outrage when Edward Snowden revealed the details of the National Security Agency's (NSA) surveillance program. At that time, a majority (47%) believed that antiterrorism programs had gone too far in restricting civil liberties, while only 35% felt those programs were actually protecting the country.

In 2005, President George W. Bush authorized the NSA to eavesdrop on U.S. citizens. A subsequent Pew Research Center survey found that 50% of respondents felt America had not gone far enough in its efforts to protect the country against terrorism. Some 54% felt it was right for the government to monitor all phone and email communications of Americans suspected of terrorism activity without first obtaining a court order, while 43% believed such eavesdropping was generally wrong. A similar distribution of opinion was recorded after President Obama took office in 2009 (Rainie and Maniam, 2016).

Immediately after the Snowden revelations in 2013, a Pew poll found that 48% of Americans approved of the government's data collection efforts for counterterrorism purposes. By January 2014, however, that approval had declined by 40% (Rainie and Maniam, 2016). Many Americans continue to express concern about government surveillance, particularly surveillance of electronic communications and data. In the same survey, 46% of respondents said they were not concerned about surveillance at all, illustrating a deeply divided public.

Meanwhile, businesses continue to mine data about their customers, adding another dimension to privacy concerns. Following major data breaches at companies such as Target, eBay, and Anthem, public anxiety over the handling of personal information intensified significantly (Rainie and Maniam, 2016). Pew surveys confirmed that most people feel they have lost control of their personal data and lack confidence that the companies collecting it can keep it secure.

The FBI vs. Apple Encryption Dispute

On December 2, 2015, fourteen people were killed and twenty-two others were severely injured when terrorists attacked San Bernardino, California. The attack was carried out by Tashfeen Malik and her husband, Syed Rizwan Farook. The couple had begun plotting the attack before they became engaged. Farook's phone was believed to contain vital information that could help prevent future terrorist attacks. The FBI ordered Apple to create software capable of unlocking and retrieving information from an iPhone without knowing the password. Apple refused, arguing that doing so would violate consumers' privacy (Editorial Board, 2016). This refusal triggered a major national controversy over whether the government should be able to compel technology companies to create a so-called "master key."

A federal judge requested that Apple provide technical assistance to the FBI, which would have required overhauling the system that disables iPhones after ten unsuccessful password attempts—a feature that renders all data inaccessible after repeated failed entries. Apple declined to comply (Kharpal, 2016). Apple's CEO described the court order as "chilling," explaining that complying would require writing new software capable of performing precisely the master-key function the FBI sought. He argued that if the FBI were permitted to access this iPhone using such a tool, nothing would stop the government from demanding the same capability in other cases. The FBI maintained that this was a one-time, case-specific request, and the dispute moved to the courts.

This case became one of the most high-profile clashes in the ongoing debate over data privacy and encryption. Law enforcement authorities argued that the encryption used by phone manufacturers makes it difficult to stop terrorist attacks or solve terrorist crimes after the fact. Technology firms countered that encryption is essential for protecting user data from hackers (Kharpal, 2016). The sensitivity of the issue was amplified by the earlier Snowden revelations about the scale of government surveillance activities.

In February 2016, a judge ruled in Apple's favor, finding that it would be improper to compel the company to break into a client's phone under the All Writs Act. The U.S. Department of Justice (DoJ) vowed to appeal the ruling (Editorial Board, 2016).

The government's case in San Bernardino rested primarily on the All Writs Act, a law originally passed in 1789 that permits judges to direct compliance with court orders and search warrants. The government argued that because it had obtained search warrants related to the iPhone, it could compel Apple to facilitate access to the device. Apple disagreed, contending that the law could not be used to force a company to compromise the security of its own products (Editorial Board, 2016; Kharpal, 2016).

Despite this dispute, Apple had previously provided data to authorities in more than seventy cases. However, improvements to its newer software versions had since removed its own technical ability to extract data on behalf of third parties. The government could continue to invoke the All Writs Act and hope that a future court would rule in its favor, or it could wait for Congress to address the issue through legislation. Neither option was straightforward or immediately appealing.

Origins and Provisions of the USA PATRIOT Act

The events of September 11, 2001 mark the origin of the U.S. War on Terror, a framework popularized by the Bush administration. Prior to that date, American anti-terrorism strategies focused primarily on combating attacks against U.S. interests abroad and supporting foreign governments in curbing terrorism within their own borders. September 11 made clear that the United States itself was vulnerable to large-scale violence (McCarthy, 2002), and the U.S. responded by fundamentally reshaping its counterterrorism approach.

To facilitate the prosecution of terrorists, the U.S. Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act—commonly known as the USA PATRIOT Act. Signed into law on October 26, 2001, the Act was designed to eliminate legal barriers that had previously obstructed intelligence gathering and surveillance activities.

The PATRIOT Act permitted investigators to use tools that had already been available for investigating drug trafficking and organized crime. These tools had been in use for many decades and had been evaluated and approved by the courts. Before the Act was passed, courts had already permitted law enforcement to conduct electronic surveillance against ordinary citizens in investigations involving non-terrorism crimes such as passport fraud, mail fraud, and drug offenses (Doyle, 2001). The PATRIOT Act extended similar surveillance powers to terrorism-related investigations, allowing agents to collect data on a wide range of terrorism-associated crimes including the use of weapons of mass destruction, the use of chemical weapons, the killing of Americans abroad, and the financing of terrorism.

The Act also addressed the practical problem of premature disclosure. When suspects learn too early that they are under investigation, they may flee, kill witnesses, destroy evidence, or sever ties with associates. For this reason, federal courts were empowered to allow law enforcement to delay notifying a subject about a judicially authorized search warrant. Investigators are given time to identify associates, eliminate threats, and apprehend suspects before making that notification (McCarthy, 2002).

The PATRIOT Act also updated the law to reflect new technologies. It made it easier to pursue digital-age threats using modern tools, including permitting computer hacking victims to seek law enforcement assistance in monitoring intruders (McCarthy, 2002). Under the Act, electronic hacking came to be treated as seriously as physical trespass, allowing victims to invite law enforcement into their digital environments much as victims of burglary can invite officers into their homes.

Conclusion

The prevention of attacks like the one at San Bernardino is a desirable goal, but achieving it through surveillance alone is not realistic. Doing so requires identifying relationships and connections that readily intrude upon constitutional protections. The task is made even harder when suspects have no prior contact with known extremists, are not on any security watch list, and have legally acquired their weapons.

Under the USA FREEDOM Act, security agencies are now required to obtain court warrants before collecting phone metadata. This process is time-consuming. Even when that data is ultimately obtained, there is no evidence that it would have been sufficient to prevent an attack like San Bernardino. The fundamental tension between effective counterterrorism and the preservation of civil liberties remains unresolved, and the FBI–Apple dispute made that tension visible to the entire nation.

References

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Doyle, C. (2001). Terrorism: Section by section analysis of the U.S.A. PATRIOT Act. Washington, D.C.: Congressional Research Service.

Editorial Board. (February 19, 2016). The FBI vs. Apple: The White House should have avoided this legal and security showdown. The Wall Street Journal.

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McCarthy, M. T. (2002). Recent developments: USA PATRIOT Act. Harvard Journal on Legislation, 39(Summer 2002), 435–436.

Rainie, L., and Maniam, S. (February 19, 2016). Americans feel the tensions between privacy and security concerns. Pew Research Center. Retrieved from http://www.pewresearch.org/fact-tank/2016/02/19/americans-feel-the-tensions-between-privacy-and-security-concerns/

Stone, J. (2015). U.S. surveillance wasn't designed to stop domestic terrorism, even the San Bernardino shooters. International Business Times. Retrieved from http://www.ibtimes.com/us-surveillance-wasnt-designed-stop-domestic-terrorism-even-san-bernardino-shooters-2210453

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