Apple vs. the DOJ (Redux): Balancing Privacy and Security

Like forensic, physical, testimonial, or any other form of evidence, digital evidence should not stand alone as the sole pillar of a prosecutor's case. But it is absolutely reasonable to have digital evidence included when it's relevant, and that is only possible when investigators gain the type of access Attorney General Barr and his Department of Justice is looking for in the case of the terror attack on NAS Pensacola.

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Yesterday we reported that Attorney General William Barr held a press conference earlier this week during which he slammed tech giant Apple for not doing more to help investigators examine the digital contents of the iPhones owned by the terrorist who attacked Naval Air Station Pensacola in December, leaving three American service members dead—eight others were wounded in the attack.

The assailant—a second lieutenant in the Royal Saudi Air Force whose name merits no mention in this space—had two iPhones in his possession during the attack. Both devices were damaged, but later repaired by FBI technicians.

Barr said that the FBI quickly received court approval on probable cause to search the devices, and complained that Apple has been slow to cooperate with the process of unlocking the devices to see what information may be gleaned.

While investigators have found no evidence that the gunman had co-conspirators, Barr and the investigators in the case say that the only way to know for certain whether he discussed the attack with others is to unlock the phones—which are locked with unknown pass codes and encrypted—and examine their digital contents.

"This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause," Barr said. "We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks."

Apple maintains that it has responded to numerous FBI requests for assistance during the investigation, and that their responses "have been timely, thorough, and are ongoing."

The company said in a statement, "Apple has great respect for the Bureau's work, and we will work tirelessly to help them investigate this tragic attack on our nation."

The statement added that Apple had quickly complied with several earlier requests for access to iCloud backup material, account information and transactional data.

We've been down this road before, and we will surely revisit it again, so let's examine where we've come from and where we're going with regard to the balance between safety and privacy in the digital space.

DĂ©jĂ  Vu, All Over Again

This dispute places Apple—one of the world's largest and most powerful technology companies—once again on the side of protecting the digital privacy of an accused jihadist terrorist.

Indeed, the current dust-up between Apple and the DOJ is nothing new—it's simply the most visible recent example of the tension between the two parties that has existed since the FBI asked Apple to create a new version of the iPhone operating system (iOS) which would defeat certain security features on the phone used by one of the terrorists who killed 14 people and wounded 22 others in San Bernardino in 2015.

Apple—and other tech firms—have said that creating vulnerabilities in their encrypted products would jeopardize internet security for law-abiding citizens and make users more prone to attack from cybercriminals.

There is certainly some truth to that assertion. There should remain strong safeguards that allow innocent, law abiding American citizens to retain their right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

However, it should be noted that in the case of the terrorist who attacked members of the American military on sovereign American soil last December at the western edge of Florida's panhandle was not an American citizen, and consequently—in my estimation anyway—should not be afforded that Constitutional right.

Setting aside the assailant's nationality for the moment—because the possibility exists that an American born terrorist could very well one day become the subject of a similar situation—let's examine the larger notion of simply investigation crimes in the digital realm.

All About Digital "Stuff"

Law enforcement regularly secures search warrants to examine a suspect's home, vehicle, and other property. Contained therein is "stuff" that may support suspicion of criminal activity—or possibly evidence that proves exculpatory in favor of the accused.

Let's be clear. We're talking about "stuff"—digital evidence such as that which is contained on an individual's laptop, tablet, or mobile phone is simply "stuff" comprised of ones and zeros.

Law enforcement—in this specific case the FBI, but this applies to all law enforcement—is not looking for an unguided "fishing expedition" in the examination of a specific suspect's digital world.

Submitting investigation and information requests to Apple and other tech firms is an arduous process that requires law enforcement to be very specific about what they're looking to find on an electronic device.

This is as it should be.

Following the collection of myriad other forms of evidence during the execution of an investigation, law enforcement should have a pretty good idea of what they think might find on someone's phone.

Like forensic, physical, testimonial, or any other form of evidence, digital evidence should not stand alone as the sole pillar of a prosecutor's case. But it is absolutely reasonable to have digital evidence included when it's relevant, and that is only possible when investigators gain the type of access Attorney General Barr and his Department of Justice is looking for in the case of the terror attack on NAS Pensacola.

According to folklore, Benjamin Franklin once said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

It's unknown whether or not it was Franklin who uttered those sage words—or if it was perhaps Alice Addertongue—but the wisdom of that statement remains as true today as it was during the birth of our great nation.

It's imperative that parties on both sides of this digital debate drop the partisan pandering, stop needlessly vilifying the other side, and begin working on a reasonable solution that satisfies the balance between safety and liberty.

Final Words

I close this column with some more information about the attack on NAS Pensacola, in part because just days after the event, most of the mainstream media had moved on as if it had never even happened.

Remember that two deputies with the Escambia County Sheriff's Office were wounded in an exchange of gunfire with the gunman that ultimately ended the threat to the base.

Remember that the three victims who died during the attack that day were a 19-year-old airman from Florida; a 23-year-old ensign and recent graduate of the United States Naval Academy from Alabama; and a 21-year-old airman apprentice from Georgia.

These are three promising young lives taken from us by a radical jihadist terrorist who posted anti-American sentiments on Twitter prior to the attack.

There is a very high probability that those social media posts were made with one—or both—of the terrorist's now locked and encrypted iPhones.

The United States has since expelled 21 Saudi nationals who had been participating in military training programs, sending them back to Saudi Arabia. The probe found no evidence that the students helped plan the attack, but many of them had contact with child pornography and almost all of whom possessed jihadist or anti-U.S. material.

The last time we had a group of Saudi nationals learning how to fly in Florida it didn't turn out so well—so what on earth were we doing allowing that to happen again?

The argument is that those pilots were learning how to fly jets manufactured by American companies and sold to the Saudis, and that the instructors are based here.


Those would-be pilots could very effectively be trained in Saudi Arabia—or at the very least somewhere not on America's Gulf Coast.

This column is written in memory of every American who has fallen victim to radical jihadist terrorism.

Related: Apple's Double Standard

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