By Andrew P. Napolitano February 25, 2016
“There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” — Justice Antonin Scalia (1936-2016)
After the San Bernardino massacre on Dec. 2, 2015, the FBI lawfully acquired the cellphone of one of the killers and persuaded a federal judge to authorize its agents to access the contents of the phone. Some of what it found revealed that the killer used the phone to communicate with victims and perhaps confederates and even innocents who unwittingly provided material assistance.
Then the FBI hit a wall. It appears that the killer took advantage of the phone’s encryption features to protect some of his data from prying eyes unarmed with his password.
The cellphone was an iPhone, designed and manufactured by Apple, the wealthiest publicly traded corporation on the planet. Apple built the iPhone so that its users can store sensitive, private, personal data on the phone without fear of being hacked by friend or foe.
After the FBI determined it could not replicate the killer’s password without jeopardizing the phone’s content, it approached Apple, and representatives of each negotiated for weeks trying to find a way for Apple to help the FBI without compromising the security of the Internet itself. They failed.
Apple has argued that the government has no legal right to compel it to assist in a government investigation, or to compel it to alter or destroy its business model of guaranteeing the safety and privacy of its customers’ data. Apple knows that any “key” it creates for the FBI, once used on the Internet, is itself vulnerable to hacking, thereby jeopardizing all Apple products and negating the privacy of tens of millions, and even exposing the government to foreign hackers.