Letter to the Editor: Burlington County Prosecutor Sounds Off on FBI, Apple Debate

To the Editor:

What was behind the fatal shooting on Dec. 2, 2015 when an employee of the San Bernardino County, Calif., public health department walked into the agency’s holiday luncheon and, along with his wife, slaughtered 14 people and seriously injured 22 others?

Law enforcement authorities believe the carnage carried out by Syed Farook and his wife, Tashfeen Malik, in a conference room filled with county workers was a terrorism-inspired attack.

Farook and Malik, who were radical Islamists and supported ISIS, were killed hours later during a shootout with police.

With the possibility gone of questioning the couple, investigators presented a federal magistrate with facts in support of obtaining a warrant to search Farook’s iPhone with the hope of gaining information on the planning of the massacre, and perhaps preventing a future attack by others with whom they associated.

But the emails, text exchanges, voice messages, photos and other data that could assist law enforcement remains inaccessible. The FBI is unable to break through Apple’s encryption and review the iPhone’s information.

Apple has refused to assist FBI agents with extracting the information from Farook’s phone; and Apple CEO Tim Cook has indicated that the company will not comply with the court’s order.

Specifically, the judge directed Apple to provide the FBI with technology to bypass a designed feature that automatically erases all data on the phone after an incorrect password is attempted 10 times.

Mr. Cook has claimed that Apple does not possess the technology being requested. Furthermore, Mr. Cook argues that it is an “overreach” by the government to even suggest such an option because it would “expose customers to a greater risk of attack” against their iPhone data.

“The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals,” Mr. Cook said in response to the order.

Mr. Cook has proclaimed “a love of our country” and said the refusal is being done with the “deepest respect for American democracy.”

Yet the contempt for our democracy and the hatred of our country are exactly what investigators believe inspired the deadly rampage of the San Bernardino shooters.

Perhaps what Mr. Cook is afraid of is undermining the company’s massive profits and market share.

FBI Director James Comey has said that the effort to gain access to the Farook iPhone is “about the victims and justice.”

“We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly,” Director Comey said. “That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land.”

Apple, Google and other personal device technology companies have never been asked to prevent their customers from being able to encrypt data. There is no attempt being made in this case to erode the privacy rights of all cell phone users. Director Comey is correct in that what is being requested is very simple.

What’s being asked is that for those incidents where a law enforcement agency obtains a judicial warrant to search a personal electronic device, there must be a way for the data from it to be retrieved.

The company that manufactured the device should be held accountable for unlocking any device it created.

Encrypted cell phones do much more than protect privacy. They protect terrorists, child molesters, child pornographers, drug dealers, human traffickers and a multitude of other criminals who are now realizing they no longer need to hide from law enforcement officials to avoid charges – they just need to conduct business on their iPhones.

CEO Cook does not have to look into the eyes of the family members of the victims in San Bernardino. He does not have to explain to them why his customers’ “privacy” is more important than the lives taken by terrorists who use his company’s products to facilitate their horrific attacks.

While there is clearly a balance to be struck between the privacy rights of the individual versus the safety of the community and our nation, no rational-thinking individual would tip the scales toward privacy when human life is at risk.

Congress has the power to eliminate this obstacle by invoking its inherent powers under the Commerce Clause.

The false argument about privacy rights emanating from the far left and the far right ignores the fact that no phone or other device can be probed by law enforcement unless and until a search warrant is issued based upon probable cause and assessed by a neutral magistrate.

This isn’t about privacy and it shouldn’t be about profits. It’s about the safety of America and its people. And the time to act is now.

People are more at risk because a corporate CEO substituted his judgment for the wisdom of a judge; a judge who is part of the same American democracy that Mr. Cook claims so deeply to respect.

Sincerely,

Robert D. Bernardi

Burlington County Prosecutor

The attached image of Robert D. Bernardi was provided by the Burlington County Prosecutor’s Office