Big Brother wants to break the code

Roopen Roy

(The author is the Founder and CEO of Sumantrana, a strategy advisory firm)

Principles and fundamental beliefs should be more important than expediency, always. Ajmal Kasab was a Pakistani terrorist. In full view of thousands of TV viewers he carried out the 26^th September 2008 carnage in Mumbai. In December 2008, the Indian Chief Justice K.G. Balakrishnan asserted that he should have a fair trial and for that Kasab needed a lawyer. On April 1, 2009, Senior Advocate Anjali Waghmare agreed to represent Kasab, despite huge protests from some political groups who stoned her home. Kasab was not killed in an encounter or by a vigilante or by the order of a military court.

Finally, on 29 August 2012, Kasab was found guilty of waging war and was sentenced to death by the Supreme Court of India. Kasab's plea for clemency was rejected by President of India on 5 November and he was hanged on 21^st November 2012.

Many Indian citizens were exasperated by the lengthy process of trial and appeals. They wanted Kasab to hang after a fast-track, summary trial. But the administration and judiciary were right in upholding the rule of law and following due process. It did not cut corners. Justice was not only done but seen to be done even in the case of a despicable terrorist like Kasab.

In America, a similar debate concerning an act of terror has gripped the world of law, technology and civil rights. The facts are as follows: on 2^nd December 2015, 14 people were killed and 22 were seriously injured in a terrorist attack in San Bernadino, California. The attack was carried out by a couple : Syed Rizwan Farrok and his wife Tashfeen Malik. Both the terrorists were killed while exchanging gunfire with the police. Apart from weapons and bombs, the law-enforcement authorities found an iPhone 5 C running Apples iOS 9 operating system.

When the FBI wanted to check the phone for clues, they were asked for, as all iPhones do, a 4 digit pass code. Of course, the users of the phone were both dead and the FBI had no clue about the pass code. The FBI could have tried guessing for a maximum of 10 times but if they missed the 10 chances the phone would erase all the data. Apple provides this feature to protect the data and privacy of the users of their handsets.

The Apple phone technically belonged to the Bernadino County as it was Syed Rizwan Farrok’s office phone. The Bernadino County officials did not have the 4-digit pass code but they had the authority to change the password of the i-Cloud account with Apple. They went ahead and changed the password of the iCloud account and that proved to be a blunder. When the FBI made a new back-up it did not back the old data as the password had changed. They should have backed the phone up first before changing the iCloud password. Be that as it may, the FBI was in a fix. They wanted Apple to help them break the code of the phone by allowing FBI unlimited attempts as the 4-digit code has only 10,000 possibilities which can be simulated very fast with tools available with FBI.

Apple debated internally long and hard. The consensus was: FBI was asking Apple to do something that sacrificed principles and rule of law for expediency. Apple politely declined to play ball. This is when FBI went public with Apple’s defiance and threw the All Writs Act at them obtaining an order from a Federal Judge to force Apple to comply. The issue was extremely sensitive as the common people could be misled to believe that Apple was not cooperating in a case of terrorism that caused the loss of American lives. The Sheriff made an inflammatory statement asking to “lock up the rascal”, the rascal in this context being Tim Cook, the CEO of Apple. Donald Trump saw an opportunity of bashing a “rogue” corporation and asked the question” Who do they think they are?”.

The FBI and the establishment did not anticipate that they would raise a fire-storm with their Orwellian Big Brother attitude. The technology fraternity -many of them competitors of Apple: Microsoft, Amazon, Facebook and Google all stood solidly behind Tim Cook. Behind them were AT&T, Cisco, WhatsApp, Twitter, Snapchat and a whole raft of technology companies.

Apple denounced the terrorist attacks and agreed to cooperate in every which way but refused to cross the red line. Apple contended that if it handed over a tool to FBI that could crack open iPhones then that would be the end of privacy, secrecy and security of its phones. In his inimitable way, Cook said, “To invent what they want me to invent puts millions of people at risk.” Apple filed an objection in a similar case and on February 29 the judge ruled in Apple’s favour. Reverend Jesse Jackson has said,” I stand with Apple and stand up for civil rights.”

According to media reports, the FBI has approached an Israeli forensic software company, Cellebrite, to help them try to unlock the iPhone 5c of the terrorist. If they succeed in cracking the code, then FBI will be spared a showdown with Apple that has witnessed a near-unanimity of all leading tech firms and privacy advocates who have rallied behind Apple. If Cellebrite fails, a very interesting drama will unfold in US court rooms pitting privacy and due process against the law enforcers’ demands to lift the veil of privacy.

Postscript: The FBI claims that it has broken the code with the help of a third party and hence will not pursue the legal action against Apple. A good ending for now. A victory for privacy and the rule of law and a face-saving for FBI. However, though the battle is won for now, the war is not over.