Be angry at Apple—not the FBI—over privacy

If Apple were to comply with the FBI's request to provide a hack for its operating system to access the phone of San Bernardino attacker Syed Farook, it would allow the FBI to do what is called a "brute force attack" – using a supercomputer to try millions of security passwords to unlock it.

Without the re-engineered operating system, Farook's phone will lock down after 10 unsuccessful attempts to unlock it making the data on the phone forever irretrievable.

The essence of Apple's legal argument in this case seems to be that the court does not have the authority to issue an order compelling it to provide proprietary software to the government. And, in Apple CEO Tim Cook's letter to customers explaining its decision, he expressed concern that the software to unlock a phone could fall into "the wrong hands."

"The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a back door. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control," Cook wrote.

As a former FBI agent, I have long subscribed to the concept of reverence for the law and support for the Constitution. I have spent many hours in annual legal training and refreshers where the Bill of Rights, the Fourth Amendment, and the current status of search and seizure appellate law was discussed. As FBI agents, we were taught that search warrants were not difficult to get IF you had the probable cause to believe evidence may be located somewhere within a premise, or in this case, a device. The determination of what constituted sufficient probable clause was to be determined by an independent magistrate who reviewed the facts contained in an affidavit submitted under oath.

As a current cybersecurity strategist and consultant, however, I have to ask myself: Do I support the surrender of iPhone security to the government in exchange for an unenforceable guarantee they will be able to protect me from terrorism? Or do I support Apple's fight against an evil government who can't protect me from terror, but rather is bent on monitoring every facet of our private lives?

I believe that government intrusion into personal privacy is not the overriding public policy issue that Apple and the Electronic Freedom Foundation would have you believe it is. All day long, the average citizen voluntarily relinquishes their personal information to social media in the form of Twitter, Facebook, and Instagram messages. Online advertisers use complex algorithms to analyze our Google, Firefox and Safari searches to develop in-depth personality profiles in order to allegedly enhance OUR online shopping experience. Health-insurance companies, credit-card issuers, and big-data aggregators make life-or-death decisions based on information WE have voluntarily provided them.

The hypocrisy is that Apple knows more about you via your Apple ID and iPhone than they — or we — care to admit. But no one raises a fuss despite corporate intrusion into private lives being way more pervasive than anything the FBI ever did during my 28-year career in counterterrorism and counterintelligence. If the public is going to be angry about their loss of privacy, they should focus their anger on corporations like Apple and Google, not the FBI.

Decrypting the iPhone of a self-admitted terrorist and supporter of ISIS will not be like Pandora's box, releasing all of our personal information into the hands of waiting hackers. Nor will it threaten the privacy of the average citizen. It may, however, assist the FBI in determining whether or not other co-conspirators of Farook are still out there. And it might just protect the public from further attacks.

Ultimately, a divided U.S. Supreme Court will decide this case, as all parties to the issue will continue to appeal until a penultimate decision is reached. I, for one, will be supporting the FBI in their limited quest in this particular case.

Commentary by David Gomez, a former FBI executive and current senior fellow at George Washington University's Center for Cyber and Homeland Security (GWCCHS). Follow him on Twitter @AllThingsHLS or @AllThingsCyber.

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