Over the 30 years that I’ve been paying attention, Connecticut’s congressional delegation hasn’t been particularly shy about commenting on matters that could potentially affect the privacy of tens of millions of Americans. But as of this writing, only one of them has addressed the hottest issue of the last two weeks: the case of the Federal Bureau of Investigations vs. Apple Computers. Even the camera-mugging Sen. Richard Blumenthal, the great protector of consumers from sea to shining sea, hasn’t seen fit to even put out a press release.
There could be at least two reasons for the silence: 1) It’s a complex issue and studying up on it could take some time and effort. 2) Since the matter is so complex, there is no easy position to take. A recent USA Today/Survey Monkey poll — apparently unscientific — found that 51 percent of those surveyed supported the FBI’s position.
In case you’re a Luddite or you’ve been living on a cave for the last 10 days, here’s the case in a nutshell: In the aftermath of the San Bernardino terrorist attack, law enforcement authorities found the work cellphone of Syed Farook, one of the attackers. Naturally, the FBI wants to get inside the phone to see if additional evidence can be found.
The problem is that Farook’s iPhone 5C is locked. Not a problem, you say? There are only 10,000 possible pass-code combinations, so try them all until one of them works? Not a chance. After 10 unsuccessful attempts to enter the code, the iPhone automatically deletes all data. You see, the jeans and hoodies at Apple aren’t stupid, though I’m sure the FBI wishes they were.
Here’s where it gets sticky. Since the iPhone cannot be hacked, the FBI wants Apple to unlock it, but the only way to do that is for the company to rewrite the code and essentially produce a new operating system that would provide a back door to that model iPhone.
This is where Congressman Jim Himes, D-4th District, comes in. Last week Himes was interviewed by Kelly Evans on CNBC’s Closing Bell program. Himes stopped just short of taking Apple’s side in the dispute, but he explained the complexity of the matter with remarkable clarity and zeroed in on the pertinent issues.
“The question is how do we feel about the government being given a new authority, which is to go to a third party — Apple Computer in this case — and say, ‘You need to not only help us here, you need to actually write a whole new software program?’”
In other words, it would be one thing for the FBI to obtain a warrant, either publicly or secretly through the FISA Court, demanding that Apple turn over customer records or other information or hardware that might be used as evidence in a prosecution.
But it’s quite another to demand that Apple write a new operating system that defeats the very privacy feature so prized by its customers. Disclosure: I have owned four iPhones in the last eight years and love the feature that wipes the phone clean after multiple passcode failures.
“The reason the FBI is asking the court to give it fairly unprecedented authority here is to compel a company not just to cooperate with a warrant, to produce emails or to allow them to look at computer records,” Himes told Evans, “but to actually create a whole new operating system that has weaknesses in it and so that’s a very big deal and something we should think really hard about.”
Exactly. As I’ve written before, Himes, a member of the Permanent Select Committee on Intelligence, is one of the only people in Washington who makes sense and speaks with lucidity about legal and national security issues.
Then Himes got to the most important point in this matter: “But the other question that national security people like me need to think about is if that new key, if you will, to an iPhone exists, and even if it only exists in Apple’s headquarters, how do we feel about that? Because I promise you that if that key exists, it is now a huge target for the Chinese for the Russians, for the Iranians, for criminal enterprises etc.”
Nailed it again. Here’s another point that merits consideration. If the case winds up in the U.S. Supreme Court after a go-around in the Circuit Court of Appeals, the high court will be evenly divided after the recent death of conservative Justice Antonin Scalia.
If the high court is split 4-4, the appeals court decision will prevail unless the justices vote to delay a decision until there are nine justices. Isn’t it curious that the court order was made public on Feb. 16, only three days after Scalia’s death?
In court papers filed yesterday, Apple argued that the federal government’s order violates the company’s 1st and 5th amendment rights, increasing the likelihood that the case will wind up in the high court. Good thing SCOTUS doesn’t allow TV cameras in the courtroom because I would surely play hookie from my day job to watch the arguments.
Contributing op-ed columnist Terry Cowgill lives in Lakeville, blogs at ctdevilsadvocate.com and is news editor of The Berkshire Record in Great Barrington, Mass. Follow him on Twitter @terrycowgill.
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