Chertoff: Apple's right, the Internet has changed

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The Internet has changed since the terrorist attacks of Sept. 11, 2001 — perhaps enough that the cybersecurity of Apple's iPhones is a top economic priority, one high-ranking Bush-era official said.

"I think everybody agrees that where the government has a lawful order they ought to be able to get everything that is available," former U.S. Homeland Security Secretary Michael Chertoff told CNBC's "Closing Bell" on Monday.

"But the Internet has changed. The vulnerabilities are greater. The threats to innocent people are greater. And if people are going to continue to transact business over the Internet, they have to believe it's not going to be interfered with," said Chertoff.

Ted Boutrous
Todd Williamson | Invision | AP

Chertoff's comments come just a day before an Apple-FBI dispute goes to the House Judiciary Committee. Chertoff said creating a "duplicate key" into iPhones for government warrants compromises security for the vast majority of innocent people.

Apple's general counsel and FBI Director James Comey are scheduled to testify before Congress on Tuesday amid the public debate about whether the tech giant should assist investigators in accessing data on the iPhone used by San Bernardino, California, terrorist Syed Rizwan Farook.

Apple attorney Theodore Boutrous insisted on Monday that the agency's request could set a dangerous precedent.

"The government is asking the court to compel Apple to write new software that has never existed, that Apple thinks is dangerous to have exist, because it would then be subject to hackers, criminals, terrorists and theft by them and misuse by them, which threatens the security of hundreds of millions of people around the globe," Boutrous said on CNBC's "Squawk Alley."

Boutrous' argument is precisely the one made by Apple in its court filing last week. The iPhone maker accused officials of trying to force Apple to create a "GovtOS," or a government operating system that could easily be used on other phones. It added that hacking the phone would violate Apple's constitutional rights and undermine key consumer expectations of security and privacy.

"If Apple were willing to do this in this one, this particular case, every other country is going to say well then you have to do it for us. You have to create or let us use that software that you created to access the data of citizens in our country," said Boutrous. "So, that is a very serious concern and again its inaccurate for Director Comey and others to say this is a one-time shot."

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The software would help the FBI hack into the phone by bypassing a security time delay and feature that erases all data after 10 consecutive unsuccessful attempts to guess the passcode. This would allow the FBI to use technology to rapidly and repeatedly test numbers in what's known as a brute force attack.

The Justice Department filed a motion Friday to compel Apple to help investigators break into the phone used by Farook, saying Apple's refusal to comply with the court's order appears to be based on Apple's concern for its business model and public marketing strategy.

Boutrous argued that Apple has already cooperated with the government's request under the law.

"So, there's no question that companies like Apple have an obligation to help law enforcement when it's required under the law. But here, this is really extraordinary — the government wants the authority to require the company to create a degraded version of its own product. That is something it shouldn't be permitted."

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Even if Apple cooperated, at the end of the day, it would be ineffective, Chertoff said.

"There will be other devices and platforms that bad guys can acquire overseas, that deliver them the encryption they want, but meanwhile the innocent people will wind up having a less-secure device," Chertoff said.

Protecting innocent people who want to encrypt their data comes at a small cost to the government, Chertoff said. But in the case of the San Bernardino shooter, tools like call records from metadata, cloud backups and many other avenues remain open to the government.

"The bottom line is, if you look at both the terrorists in San Bernardino and the Boston Marathon bombers, they were family members," Chertoff said. "Most family members talk to each other face to face. The government doesn't have access to that after the fact."