Apple and the FBI: A Tale of Mutual Incomprehension

March 4, 2016 The debate between national security interests and privacy rights is more complex than either side admits.

Geopolitical Pulse

|March 4, 2016

By George Friedman

The controversy involving Apple and the FBI has died down to a dull roar. It is difficult to think with all the shouting but it is quiet enough to consider the issues and the possible consequences — and above all to consider how important this is.

The facts of the case are simple. A pair of jihadists attacked a building in San Bernardino, California and killed 14 people. An obvious question arose. Did they act alone or were there others like them, also planning to kill people, with whom they were in contact? If there were, how do you find out? Since they are dead, you can’t question them. You can question others, but they don’t have to talk to you, and they will probably not say openly, “We are jihadist warriors preparing to kill infidels.” Chances are that, like the two shooters, others involved in the crime haven’t advertised it. The issue is not trivial. Lives are at stake and finding out if this is a group of jihadists planning to strike again is a matter of life and death.

There is one piece of evidence that can possibly provide leads for investigators: the cell phone belonging to the male shooter. It is not certain to provide leads because these might have been lone wolves or because they may have been careful not to use their phones to communicate. But they might have. And there are other means to track their phone calls, like subpoenaing phone company records. But there might be something on the phone that provides a hint — a photo, a note to himself, a map he viewed. Who knows. It is along shot. But this is a matter of life and death, and checking out the cell phone might just reveal something that could save lives. It might be a long shot, but 14 people are dead, and long shots ought to be taken to prevent more.

The problem is that Apple has made it impossible for the FBI – or anyone else without passwords – to access the information on a phone. A court ruled that the company had to help the FBI access the phone. Apple refused. Their refusal was based on the right to privacy. Once they created the tools for accessing the phone, it would inevitably leak or be reverse engineered. There are a lot of smart people out there who like to do this. Therefore, once Apple accessed the material, it would be likely that, in remarkably rapid time, the iPhone would become vulnerable, and all of the emails, texts and pictures that its customers have could become public.

The Apple argument was that while the Constitution speaks of making people secure from unreasonable search and seizure, and this may well be reasonable search, a private company is not compelled by the Constitution to assist authorities. And while this might be useful information to have, the further use of this technology would not only make hackers able to penetrate phones, but the government would then have the key to access phones without warrant, making them vulnerable to unreasonable search and seizure.

The Apple response would normally be appalling. Lives are at stake after all, and they might be the lives of Apple employees. At the same time, there has been a huge controversy over the U.S. government carrying out searches of cell phone data in its hunt for terrorists. There is fear that the government might use this information to hunt for far lesser criminals or simply to monitor citizens for the sake of controlling them. In other words, if the principle of unlimited government access to an iPhone is granted, how can the use of that access be controlled and monitored? The founders placed limits on unreasonable searches, using the Bill of Rights, because they feared the power of the government. If the government is given the power to monitor iPhones, in this case with court orders, they will have the ability to monitor those phones without a court order. It may be that the FBI would rigidly follow the law, but the framers of the Constitution would not have trusted the FBI to have that power without court supervision, nor trusted them to request court authorization to exercise a power already given to them by Apple.

Of course, the debate was not quite as thoughtful and high-minded as this. After Edward Snowden revealed the obvious, the question of government monitoring of individual communications without warrant has become a deep concern to many, including Apple customers. Apple wanted to make certain that they knew Apple stood for their values and wouldn’t yield. It was a strong Constitutional case and a fine marketing move, as the FBI charged.

As for the FBI, this was also an opportunity to establish a legal basis not only for monitoring, but also for compelling private companies and individuals to facilitate that monitoring. The danger to lives was very real, and the utility of accessing that cell phone was far from frivolous, but it was the perfect case in which to ask the courts to bend the Bill of Rights and make the FBI’s job easier.

This is complicated by the fact that in all the major wars the United States has fought, Constitutional rights were abrogated. During the Civil War, Abraham Lincoln suspended the right to habeas corpus and arrested many of Maryland’s legislators so they couldn’t vote to secede. During World War II, Japanese Americans were detained, the FBI intercepted and read Congressional mail, spies were planted on American soil and there was widespread censorship. During Vietnam, U.S. military intelligence monitored anti-war groups for signs of Soviet involvement. There is an established precedent that war gives the federal government the right to suspend parts of the Constitution out of perceived necessity, and this did not only happen in popular wars like World War II.

Many of America’s wars are undeclared, and it is obvious that the Untied States is at war with jihadists. The tactic of the jihadists is to carry out covert operations in various countries, including the United States, in order to destabilize the U.S. and force it to halt operations in the Middle East. Their fighters are not protected by the Geneva Conventions. The conventions clearly recognize the rights of guerrillas – who are referred to as partisans – however, they also demand that the guerrillas wear some mark of membership in an insurgent group and that they openly carry arms. The jihadists operating in the West obviously do neither, therefore they have no rights under the Geneva Conventions. But they do have Constitutional rights if they act in the United States. It is a strange situation where jihadists are protected by the Constitution but not by the Geneva Conventions.

But the real problem is this. It is impossible to know by looking who are the jihadists, but it is a matter of national security and life and death to find them before they strike. Criminal law is in general applied to crimes already committed, through prosecution and punishment. War is about preventing attacks before they happen. Conventional law and the logic of war, particularly when exercised in the United States, are incompatible. If authorities wait until after the crime is committed, innocents will die. If they act to find the potential killers before they act, they are likely to have to violate Constitutional safeguards.

The able jihadist does not reveal himself in a way that can be efficiently identified without massive and ineffective surveillance, until he carries out an attack. He hides himself. But if he does reveal himself, he is likely to do so through his communications. If he is not a lone wolf who speaks to no one at all, which is rare, but is in communication with someone, then uncovering that communication can prevent the terror attack. If the FBI knows that A is already planning an attack with B and C, and then D suddenly calls them, that is a reasonable indicator that authorities ought to talk to D. The problem is that the Constitution specifically opposed blanket warrants and insisted on probable cause. In this war, probable cause is not likely to be obtained, nor is it in any war. Adolf Hitler was not defeated by asking for warrants to be issued for the individual members of the Wehrmacht. And if he had invaded the U.S., I doubt that would have come up.

The argument by Apple is extremely persuasive. The Constitution recognized that the limits on government might facilitate criminals. The founders were prepared to accept that in order to guarantee liberty for the rest of us. But the FBI’s case is also persuasive, even though it didn’t make it this way. The United States is in a state of war with jihadists and a declaration of war is impossible since they are not a nation-state. The FBI is charged with defeating the jihadists and protecting Americans. Under these circumstances, as in past wars, the Bill of Rights is not absolute but must bend to the needs of war.

The problem is this. When the Civil War, World War II and the Vietnam War ended, the violations of the Bill of Rights also ended and the government did not resist. This war differs in that it is not a war of armies, decisive victory is unlikely and the U.S. will probably continue its fight for a very long time. It can permanently transform the United States into a state that disregards the Constitution and that would be a catastrophe. But the death of a loved one because Apple would not unlock one of its phones would be a catastrophe as well, for the dead, the family and, I suspect, Apple. And, for the FBI, doing what must be done to protect the nation can end in charges, trials and prison for its agents.

The tragedy of the situation is the shouting. As a nation we are caught in an existential dilemma and our view of those who disagree with us as monsters is a catastrophe in itself. The view that the FBI is a malign presence hoping to oppress the public is absurd. The view that those who fear the FBI are enemies of the republic or fools is equally absurd. The FBI is doing what is needed. The Constitution is the framework that makes us who we are. This war has forced us to choose between one or the other in ways no prior war did. This war does not end.

The choices are tragic and difficult. The most corrosive element is self-righteousness, as if one position – one’s own – is self-evidently the right one. The unwillingness to see the complexity is what threatens the republic most.