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Froma Harrop: No 5th Amendment rights for phones

Froma Harrop: No 5th Amendment rights for phones

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Federal investigators hold the iPhone of Syed Rizwan Farook, the terrorist who helped slaughter 14 innocents in San Bernardino, California. They want to look at its contents but can’t because the device is encrypted and Apple has refused to unlock it.

The matter ended up in federal court, where a magistrate judge ordered Apple to hack Farook’s cellphone. Apple has rejected the judge’s order, citing privacy concerns.

Apple is in the wrong. As Manhattan District Attorney Cyrus Vance points out, the government’s case rests on centuries of law holding that “no item — not a home, not a file cabinet and not a smartphone — lies beyond the reach of a judicial search warrant.”

There exists no “right of privacy” to withhold evidence of a crime. The idea that the cellphone is a privileged device that must be off-limits to law enforcement is nonsense.

The court is not ordering Apple to create what one critic called a “design defect,” a back door that puts all users in danger of being hacked by identity thieves and other creeps. It has ordered Apple to help the FBI get into a single iPhone.

To do this, Apple must create a hacking tool. Some fret it could fall into the wrong hands. But the decrypting could be done on Apple property by Apple people and the tool kept in Apple’s famously secure vault.

Apple’s stance, though unacceptable, is understandable from a limited business point of view. Apple worries that if it gives U.S. law enforcement access to encrypted cellphones, countries less sensitive to civil liberties will demand the same. Places like China and Russia could grab the technology for widespread use against their citizens.

U.S. tech companies and civil libertarians are supporting Apple’s stance.

Nuala O’Connor of the Center for Democracy and Technology expressed some of the fears. Cellphones “have become effectively a part of our bodies,” she wrote. Hers contains contacts, medical records, kids’ report cards, pictures and so forth.

All the more reason not to carry that information around in one’s handbag, we might say. But even if a master key for unlocking iPhones got loose, the creeps still would need to physically possess the iPhone and spend perhaps years trying to get past a password.

Full-disclosure time: Your writer is a voracious consumer of Apple products and an investor in Apple Inc. stock. She’s not selling her shares for the following reasons:

Before the recent iPhone decryption debate, China was already demanding a back door to its citizens’ computers and phones. Chinese consumers know the score.

And there are American sensibilities to consider. FBI Director James Comey spoke for many when he said national counterterrorism policy should not be left to “corporations that sell stuff for a living.” It shouldn’t matter how cool the stuff is.

Victims of the San Bernardino attack are filing a legal brief supporting the U.S. government’s position. And for what it’s worth, Donald Trump has called for a boycott of Apple products if the company does not cooperate.

No one said that drawing a line between privacy and security is simple — and new technology keeps moving that blurry border. But Comey is right. The job of setting national security policy has not been outsourced to Silicon Valley. It is a matter for our federal government.

Dear Apple: Blocking the law’s efforts to track terrorists is not a great marketing strategy. Your wisest move would be to make some noise and then help the FBI break into a terrorist’s iPhone. Contact the writer: fharrop@gmail.com

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