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AN UNPRECEDENTED ORDER THAT PUTS OUR RIGHT TO PRIVACY AT-RISK

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COMMENTARY

By Sophia Cope

If you protect your smartphone with a passcode, the device is encrypted.

But the Justice Department convinced a federal judge to order Apple to create new software that would enable the FBI to crack the encryption on the iPhone of one of the San Bernardino attackers by trying a large number of possible passcodes.

This order is unprecedented.

The White House emphasized that the FBI is only interested in unlocking this single device in this one investigation. In reality, the government is taking advantage of this tragic event to establish a dangerous precedent.

The practical problem is that if Apple creates this new unlocking technology, its deployment would be like opening Pandora’s Box. The security of all iPhone users would be at risk.

The FBI is trying to obtain as much evidence as possible. But the government often cannot get all the information it wants to investigate or prosecute cases.

It is constrained by constitutional protections like the Fourth Amendment and other rules that recognize important public policy considerations, such as the rules of privilege that forgo valuable testimony in order to protect the confidentiality of statements made to lawyers or doctors.

The key consideration here is that if Apple complies with the judge’s order, device encryption for all iPhones would be compromised. The government is essentially asking Apple to create a master key that can be used not only to unlock this one iPhone, but every iPhone.

This kind of technological power will become ripe for abuse—not only by the government, who will surely seek many more such orders, but also by nefarious individuals should this iPhone unlocking technology fall into the wrong hands—such as identity thieves, estranged spouses or anyone who would benefit from snooping into your life.

Compliance with the judge’s order will also set a dangerous precedent globally. Authoritarian regimes will be further inspired to attack the journalists, human rights advocates and other members of civil society who rely on strong encryption for their work.

The benefits of robust encryption are not abstract. We must push back against governmental efforts that undermine it—because there is no backdoor that can be used only by good guys and not by bad guys.

 

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