Apple: Profit to Trump National Security

An anti-government protester holds up his iPhone with a sign 'No Entry' during a demonstration near the Apple store on Fifth
An anti-government protester holds up his iPhone with a sign 'No Entry' during a demonstration near the Apple store on Fifth Avenue in New York on February 23, 2016. Apple is battling the US government over unlocking devices in at least 10 cases in addition to its high-profile dispute involving the iPhone of one of the San Bernardino attackers, court documents show. Apple has been locked in a legal and public relations battle with the US government in the California case, where the FBI is seeking technical assistance in hacking the iPhone of Syed Farook, a US citizen, who with his Pakistani wife Tashfeen Malik in December gunned down 14 people. / AFP / Jewel Samad (Photo credit should read JEWEL SAMAD/AFP/Getty Images)

News reports that were almost completely ignored by the American media indicate that a considerable amount of radioactive material went missing in Iraq. There are reasons to believe that ISIS has acquired this material, which it needs to make a dirty bomb. I wonder what Tim Cook, the CEO of Apple, and all those who cheer him on, would say when this bomb is set off in a major American city -- and a major reason the FBI was prevented from stopping the attack is that Apple provided the terrorists with a completely secure communication tool.

The director of the FBI stated that it has gone "dark" since Apple started to provide its customers with end to end encryption that only the sender and receivers can decrypt. Those who do not trust the FBI should note that the current director James Comey risked being fired in order to prevent the Bush Administration from implementing a surveillance program he considered was in violation of the constitution. Moreover, these doubters should note that Apple does not deny that its new encryption is for now unbreakable. In short terrorists, kidnappers, and drug lords -- who were greatly hampered by being unable to communicate with others without the NSA, CIA, or FBI capturing their messages -- now have a phone that provides them with a secure line of communication as well as a reliable place to store information about targets, participants, and so on, vastly improving their operational capabilities. In response, the FBI asked Apple to help it decrypt one such phone, the one used by the terrorist who killed 14 people in San Bernardino. Apple refused; the court agreed with the FBI and ordered Apple to comply. Apple refused to abide by the court's order. (It is appealing the court's ruling, but meanwhile the information in the terrorist's phone is losing its value as the trails go colder).

Moreover, Apple's lawyers and PR machine launched a campaign to convince the public that it should be allowed to continue to sell its phone with the new encryption powers to all comers all over the world. The campaign is using what is known as "throwing in the kitchen sink"; accordingly Apple does not rely on one argument or two, but a handful, adding some more every other week, including some very far-fetched ones.

Actually the constitution is quite clear on the matter at hand. The 4th Amendment does not state that the government may not "search" phones, homes, papers and persons; it merely bans "unreasonable" searches. Moreover, the constitution provides a mechanism for determining what searches are reasonable: the courts. In the case of the phone of the dead San Bernardino terrorist, the courts ruled that the search is reasonable. Apple argues that this matter should not be decided by the courts but by Congress. This is obviously a disingenuous proposal because it is very well known that Congress is so polarized it cannot attend to most anything. And if it did, it would take many months. Most obvious, dealing with cases is the job of courts, not Congress.

Apple argues that the FBI is seeking to violate its 1st amendment rights, because courts recognized codes as a form of speech. However, no right is absolute. Famously, one cannot shout fire in a crowded theater, precisely because such a shout may cost many lives. Apple also argues that the government might be able to prevent some speech but not make Apple say what it refuses to say, which is what is called for if Apple will be required to write a code needed to open the terrorist's phone. However the courts allow such a requirement very often when public safety is involved. For instance, they require warning labels on cigarette packages and content labeling on foods and medications, among many others.

Lawyers argue that the government cannot make Apple work for it, impose costs on it, that such an imposition would amount to "taking" (under the 5th amendment) or even slavery (in violation of the 13th amendment). These arguments have been tested by the courts on several occasions because practically all regulations the government issues -- including those involving the protection of children, consumers, employees and the public -- exact some costs. Apple surely can afford to decode a phone whose code it forged.

Apple fears that if it decodes one phone it will be called upon to decode many others. However, its army of clever lawyers surely can point to special circumstances that exist in the case at hand and hence decoding this phone will set no precedent for decoding others. For instance, the owner of this phone is dead, and the privacy rights of dead people are much lower than of those who are alive and kicking. And this phone belonged to a person we are 100 percent sure was a terrorist. Usually the government can only claim that the person it is seeking the court's permission to surveil is a "suspect".

Above all, Apple argues that if it decodes this phone everyone's privacy will be endangered. This assumes that it would disclose how it decoded its own phone, rather than subject this code to high power encryption.

I am sure Apple will still come up with more arguments. All these arguments should be sorted out. However at the end of the day it should not be up to CEOs seeking to maximize profit to have the final say in matters concerning high risk to public safety. Apple is not above the law. And its managers should note that when the next major terrorist attack takes place -- whether or not it includes a dirty bomb -- we are surely to learn that Apple's phones facilitated the attack. This should give pause to Apple's shareholders and customers. It is likely to hurt Apple's bottom line.

Amitai Etzioni is a University Professor and Professor of International Relations at The George Washington University. For more details about this topic, see his article on "Ultimate Encryption". You can follow him on Facebook, Twitter, and YouTube.

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