The FBI and Apple are currently engaged in a legal battle over the encryption of data in the iPhone of one of the San Bernardino shooters. The government wants the information on the phone for security purposes but is unable to access it due to the encryption. The government has now ordered Apple to write new software, which does not currently exist, in order to unlock the phone and recover the encrypted data. Apple is refusing to write the software, saying that creating a “back door” to access encrypted data would be an invasion of privacy for the millions of other people who own iPhones.
Apple taking a hard stand
When speaking to WBEN, Mr. Cambria outlined what the conflict seems to be between the FBI and Apple. “What they’re actually asking Apple to do is create software that doesn’t currently exist which would allow you to access and override encryption on your cell phone and be able to get into anything that’s in there. […] Apple says no because it’s dangerous,” Mr. Cambria continued. “Once it’s created, it could get into the wrong hands and hack anyone’s phone.”
Mr. Cambria described to WBEN the legal process that the FBI and Apple would have to go through to reach a conclusion. “In situations like this, it’s the magistrate who orders it and then they appeal it to a district court judge and the district court judge orders it. Apple would have to be held in contempt in order to appeal it,” Mr. Cambria continued, “and it appears that they’re ready to do it.”
When asked if the situation would be different if the software could be created for use just on the phone in question, Mr. Cambria said it still comes down to the same basic issue. “It would be a different version of the scenario because the bottom line is still invading someone’s privacy and Apple just doesn’t want to be part of that,” he told WBEN. “This isn’t the first time that the government’s tried to get information from Apple, Google, Yahoo!, and all the rest of them. Some of them have cooperated. Apple’s obviously taken a hard stand.”
Question of the greater good
Mr. Cambria also doubts that Tim Cook, the CEO of Apple, will back down from his stance. “I think this is the kind of company that prides itself on always being avant-garde in every area,” he said to WBEN, “and I think they respect privacy and they mean it and they’ll stand up for it.” Mr. Cambria went on to express concerns about the implications of creating this software. “This software in the wrong hands could be a criminal nightmare, a terrorist nightmare, and I think Apple is trying to make that point.”
When speaking to WIVB, Mr. Cambria said, “To have the federal government say, ‘create what would be a disastrous, dangerous software’, clearly that wouldn’t be something I would be in favor of.” He went on to say that “it would be against everything that we stand for as far as protecting people’s […] right to privacy of individuals.”
Mr. Cambria told WBEN that creating this decryption software is “the old story about the greater good. Is it worth it to breach privacy for this one instance? […] I think Apple has a legitimate basis here to say, ‘you’re trying to solve this one problem, but you may be creating a massive problem that eclipses this one.’ I think that’s basically their stance at the moment,” he continued. “Now, whether or not the technology can be refined so that the overriding of an encryption is itself in some way encrypted is another story and, so far, Apple claims ‘no.’ […] You clearly want this information, people have been killed. We want to know if there’s more out there but, on the other hand, you may be creating a much bigger problem.”
About Paul J. Cambria, Jr.
The chair of Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, Mr. Cambria advises clients on criminal trials, criminal appeals, constitutional and First Amendment law, zoning and land use, antitrust, and professional licensing defense. He divides his time between the firm’s offices in Buffalo and Los Angeles.