- The Washington Times - Wednesday, February 17, 2016

A seminal showdown in the long-running fight over government access to private communication is brewing over the judicial order to compel tech giant Apple to help the FBI hack the cellphone of one of the San Bernardino jihadis.

Fearing Tuesday’s ruling could give law enforcement unprecedented access to data stored on cellphones of everyday consumers, privacy advocates are rallying in support of Apple after CEO Tim Cook pledged Wednesday to fight what he described as a government overreach that would force the company to devise a “backdoor” to its encryption security features.

The Obama administration Wednesday tried to downplay concern that the ruling might set a wide-ranging precedent as a handful of presidential candidates, and even former NSA contractor Edward Snowden, also stepped into the fray.

“They are not asking Apple to redesign its product or to create a new backdoor to one of their products,” said White House spokesman Josh Earnest, disputing Mr. Cook’s accusation that the government is seeking a way to break encryption on a swath of Apple products. “They’re simply asking for something that would have an impact on this one device.”

Tuesday’s ruling came from a California judge who approved a Justice Department request to compel Apple to provide technical assistance to the FBI so that agents could attempt to break the four-digit password that protects the work-issued cellphone belonging to Syed Rizwan Farook, who with his wife, Tashfeen Malik, killed 14 people at his San Bernardino, California, workplace.

The order, issued by Magistrate Judge Sheri Pym of the Central California Federal District Court, forces Apple to create a way to bypass a security feature that wipes all data from the phone after the password is incorrectly entered 10 times.

With that feature suspended, investigators could then attempt to enter all four-digit password combinations until they find the right one to unlock the phone.

This is the first time a judge has issued a court order that would force a company to break its own encryption, said cybersecurity expert and Pace University professor Darren Hayes.

“Apple doesn’t want to have dialogue with law enforcement,” Mr. Hayes said. “The FBI felt they had no other alternative.”

Mr. Snowden, who leaked classified government documents that revealed the existence of secret surveillance programs, called it “the most important tech case in a decade.”

“The @FBI is creating a world where citizens rely on #Apple to defend their rights, rather than the other way around,” he wrote on Twitter.

Others were critical of Apple’s resistance to the court order.

Senate Intelligence Committee Vice Chairwoman Dianne Feinstein said lawmakers are prepared to author legislation this year that would require companies to give investigators access to encrypted information in compliance with court orders.

“I believe that, as a government, we have every responsibility and duty to see that Apple provides that information,” the California Democrat told CNN on Wednesday.

GOP candidates Donald Trump, John Kasich and Ben Carson also sided with the government on the matter. Mr. Trump said investigators should be able to open up the cellphone, and Mr. Kasich said he didn’t think the court order amounted to government overreach.

At a CNN town hall meeting Wednesday night, Mr. Carson said he understood why Apple wouldn’t trust the government, but “we’re gonna have to get over that” and have the public and private sectors work as partners, he said, because jihadis “want to destroy us.”

The Justice Department’s petition for the order states that data backed up from Farook’s iPhone to Apple’s iCloud shows that he had been in communication with several of the people killed in the Dec. 2 shooting at the Inland Regional Center, where a holiday party was being held for the county health agency that employed him.

However, Farook disabled the cellphone’s ability to back up data to iCloud about two months before the shooting, potentially as a way to hide evidence. Two other cellphones belonging to Farook were recovered but described as “destroyed” in the petition.

While encryption has been a hot topic for tech companies and law enforcement for some time, the Apple case represents a growing frustration with the inability to find a solution that appeases both sides.

Privacy advocates see the ruling as a first step down a slippery slope.

“Essentially, the government is asking Apple to create a master key so that it can open a single phone,” said Kurt Opsahl, general counsel of the Electronic Frontier Foundation. “And once that master key is created, we’re certain that our government will ask for it again and again, for other phones, and turn this power against any software or device that has the audacity to offer strong security.”

The fear was echoed by Mr. Cook in an open letter posted on Apple’s website overnight, hours after the Tuesday order was issued.

“The government suggests this tool could only be used once, on one phone,” Mr. Cook wrote. “But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices.”

And Republican lawmakers weren’t unanimous either as Rep. Justin Amash, Michigan Republican, said the Justice Department’s request was “unconscionable and unconstitutional.”

The order gives Apple five business days to respond. In Mr. Cook’s letter, he said the company would seek to challenge the order.

If this court order stands, it’s difficult to say whether or how frequently the FBI would seek to use the technique to unlock cellphones belonging to targets of other criminal investigations. An FBI official said any additional requests to do so would still have to go to Apple on a case-by-case basis, and the solution in this situation might not be applicable in other scenarios.

American Civil Liberties Union spokesman Josh Bell said his organization is aware of at least 70 prior cases in which the government has sought to compel Apple to unlock iPhones, something the company was capable of doing on cellphones with older operating systems, under the same law cited in this case.

The debate over encryption has become a hot topic for national security and law enforcement officials, who say it presents a difficulty for investigators handling cases that range from homicide to terrorism investigations.

Earlier this month, FBI Director James B. Comey lamented before the Senate Select Committee on Intelligence that investigators had been unable to retrieve data from a cellphone belonging to one of the two San Bernardino shooters.

Meanwhile, the Justice Department announced that it was seeking to add an additional $38 million in funding to an FBI initiative meant to develop a workaround to data encryption.

• Andrea Noble can be reached at anoble@washingtontimes.com.

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