Editorial: Compromise on data lost in posturing

Tim Cook stated forcefully that it would fight the court because it was being asked to create a skeleton key that would be prized by criminal hackers and totalitarian regimes. Photo / AP

FBI and Apple could surely look at shooter's phone without betraying wider public rights.

The computer giant Apple is defying a court order to allow investigators access to an encrypted smartphone used by a gunman in the massacre of 14 people in California. Apple argues that, far from protecting a terrorist, it is upholding a principle which millions of iPhone owners value - their right to privacy and especially invasive snooping by the state.

The company's chief executive, Tim Cook, stated forcefully that it would fight the court because it was being asked to create a skeleton key that would be prized by criminal hackers and totalitarian regimes.

The FBI, which wants the contents of the phone, argues that criminals should not be protected by technology. The agency is determined to learn whether the San Bernadino phone user was in contact with Islamic State operatives, and whether the lives of other innocent Americans could be in jeopardy.

The judge in the case upheld the US Justice Department's application to disable the phone's ironclad security. Somewhat quaintly, given that the case involves cutting edge technology, an 18th century law came into play in the court's judgment. Government lawyers relied on the All Writs Act, a law that says courts can require that people do things to comply with their orders.

The case is a potential flashpoint in the clash of technology and privacy, and the balance between national security and individual rights. Apple, having drawn a line in the sand, has upped the stakes with US authorities who want the firm to install software on the phone that would save its contents and permit the FBI to 'brute force' the phone - jargon for cracking the password without deleting data on the device.

According to the Justice Department, the request does not require Apple to redesign its products or disable the phone's encryption. The software, it said, would operate only on the iPhone5C used by Syed Rizwan Farook in his murderous assault last December. Technical experts say Apple can do what federal authorities want - the argument in America is whether the demand is reasonable.

The case is a potential flashpoint in the clash of technology and privacy, and the balance between national security and individual rights. Apple, having drawn a line in the sand, has upped the stakes with US authorities.

The stand taken by Mr Cook differs from Apple's position barely three years ago when it and other Silicon Valley firms were accused by whistleblower Edward Snowden of standing by while US and UK spy agencies routinely tapped into their databases. Now the Apple boss is championing the constitutional rights of its customers to privacy - a stand which happily coincides with Apple's commercial interests.

Given the stakes involved, it is unsurprising that competing interests in this dispute are engaged in a fight for the moral high ground. But it should not be beyond the parties to construct a solution that at once preserves hard-won privacy rights and limits law enforcement authorities to the San Bernadino case, rather than, as Mr Cook argues, handing them a key to Apple's universe. In this country, when matters of national security have come before the courts, special advocates have been appointed to sift through sensitive material and offer an independent view of whether it could be released. The approach appears to have satisfied security interests, the rights of defendants and prosecuting lawyers.

When all the posturing in the San Bernadino case is set aside, it should be possible to examine the phone's contents, without exposing every smartphone owner to prying eyes.

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