Apple’s Rotten Core
CEO Tim Cook’s case for not aiding the FBI’s antiterror effort looks worse than ever.
Feb. 28, 2016 4:58 p.m. ET
By refusing to help the FBI unlock the iPhone used by a dead terrorist, Apple succeeded in shifting the debate over privacy and security—but not the way it intended. Apple’s recalcitrance makes it likely technology companies will no longer be allowed to ignore court orders or design devices to evade reasonable searches. The question is whether Congress or the courts will set the new rules.
CEO Tim Cook’s test case for Apple is rotten to the core. He claimed it was too “burdensome” for Apple to help unlock the iPhone of Islamic terrorist Syed Rizwan Farook, who with his wife killed 14 people and wounded 22 in San Bernardino, Calif., in December. The FBI needs Apple to disarm the feature that erases the content of iPhones on the 10th wrong password so that agents can gain access to the phone to learn if there are other sleeper cells or plots.
When Apple refused the court order, Apple defenders claimed it was impossible to unlock the phone. In court papers filed last week, Apple admits that’s not true, but still claims an “unreasonable burden.”
The company told the court it would take six to 10 staffers two to four weeks to develop the necessary software. That’s less than the annual cost of one engineer, perhaps $200,000. For the world’s most valuable company, with annual revenues above $200 billion, it’s a trivial cost—and the U.S. government is offering to reimburse Apple’s expenses anyway.
National-security lawyer Stewart Bakersuggested in the Washington Post that Apple disclose how much Beijing made the company spend on special customer-monitoring software “for the convenience of the Chinese security apparatus.”
Apple at first claimed that this work would affect millions of customers. Now its engineers admit code can apply to a specific iPhone.
Apple says cooperating with the government would hurt its marketing, which emphasizes privacy. In another court case, in New York, Apple said compliance would “substantially tarnish the Apple brand,” as if branding were above the law. Apple’s new litigators, Ted Olson and Ted Boutrous, last week added the better argument that separation of powers requires Congress to decide the issue, not courts.
There’s a way out of the impasse: Apple could agree to help unlock Farook’s iPhone and focus its legal arguments on the New York case, which is less urgent because the defendant, a drug dealer, already pleaded guilty.
Apple’s refusal to help investigate terrorism has rekindled interest in legislation. Congress holds hearings this week, with most Americans saying Apple should comply with the court order, according to a Pew Research Center poll.Microsoft’s Bill Gates last week observed that the issue in the Apple case is “no different than ‘Should anybody ever have been able to tell the phone company to get information? Should anybody be able to get at bank records?’ ” Phone companies and banks must ensure that their equipment makes it possible to comply with court orders, and if AT&T and Citibank can’t promise customers privacy by evading court orders, why should Apple be able to?
There’s a tendency in this era of rapid digital innovation to assume that our technologies raise unique issues. But mobile phones are best considered the latest evolution in the communications revolution that began with the telegraph and continued with the telephone.
Providers of those earlier technologies were eventually required to cooperate with reasonable searches under the Fourth Amendment. In 1928 Justice Oliver Wendell Holmes called wiretapping a “dirty business” and argued that it should be forbidden to law enforcement. As electronic communications became widespread, Congress and the courts established rules for legal wiretaps.
“Criminals, spies and saboteurs,” Attorney General Robert Jackson told Congress in 1941, “have one great method of communication which they may use without fear of leaving incriminating trails—the telephone and telegraph. If a criminal writes a letter he runs the risk that it will fall into the hands of the law. If he transacts his illegal business in person, he may be overheard by an eavesdropper. If he sends a confederate to act for him, the confederate may betray him. . . . But so long as he uses the telephone or telegraph, he is sheltered.”
Jackson, who was later appointed to the Supreme Court, added: “Experience has shown that monitoring of telephone communications is essential in connection with investigations of foreign spy rings.”