The court fight over cracking the iPhone of the late San Bernardino mass killer Syed Farooq has captured the political moment.
This exact issue could not have arisen only a few years ago. But along came digital encryption, jihadist plots inside the United States and the federal government’s drive to pin down who is involved in them, as ISIS recruits and operates overseas.
To Eric Freedman, who teaches constitutional law at Hofstra University’s Maurice A. Deane School of Law, the U.S. government’s attempt to force the Apple corporation to help it break the phone’s security code departs sharply from precedent.
“The legal framework here is that there’s a huge difference between a search that a law enforcement officer may be authorized to conduct, and requiring a private citizen to help,” as is tested here, Freedman said.
A compulsory order is now at issue — one that is “unsupported by precedent” and “extremely dangerous,” Freedman said.
Joshua Dratel, a well-known New York City defense lawyer, notes that people have always been able to talk out of earshot. “Just because the technology is there doesn’t mean your affirmative choice of privacy is not there any more,” he said.
Top law enforcement leaders generally seem to support the position of FBI Director James Comey, who served as U.S. Attorney in Manhattan during the administration of President George W. Bush, on the need to find who Farooq may have worked with.
New York City Police Commissioner William Bratton said this week: “No device, no car and no apartment should be beyond the reach of a court-ordered search warrant.”
The case creates its own odd drama in the presidential campaign.
Sen. Marco Rubio (R-Fla.), who has slammed rival Sen. Ted Cruz (R-Texas) for backing legislation that repealed some federal surveillance power under the Patriot Act, said he hoped Apple would decide to comply with the court order.
“Ultimately, I think being a good corporate citizen is important,” Rubio said.
Earlier, Donald Trump grabbed news headlines by demanding of Apple, “Who do they think they are?”
While neither Hillary Clinton nor Sen. Bernie Sanders seemed to take clear sides going into their televised Town Hall appearance Thursday night, other prominent Democrats declared Apple should help.
“There is a phone encrypted that could yield additional information,” Sen. Dianne Feinstein (D-Calif.) told CNN. “And I believe that as a government we have every responsibility and duty to see that Apple provides that information.”
Sen. Chuck Schumer (D-N.Y.) gave it a more Apple-friendly polish.
“We need a solution that protects privacy and gives law enforcement the tools they need,” Schumer said. “We had that with land lines. We need a new technological solution. I have urged heads of Internet companies to come up with a solution and send it to Congress.”
The iPhone case becomes a milestone civil-liberties clash in a dramatic election year — with the added twist of corporate and government titans facing off.