Apple to Hack for FBI: Imminent Threat or National Security Overreach?

More than two months after the San Bernardino shootings, Apple was ordered by California Magistrate Sheri Pym to create and supply the FBI with software that would allow the US government to breach effective security features of all current iphone models.  Apple argues that the FBI is asking the private company to undermine the security and privacy of all its users.  Although Apple’s business interests in terms of product security and marketing are at stake, the FBI’s request is far from balanced or reasonable as the potential gains are minuscule compared to the far significant harm done.

With the two suspects dead and the lives of their associates under heavy scrutiny, the FBI can only hope to gain new evidence from the perpetrator’s smartphone that might reveal insights into the shooter’s thinking or connections to unknown suspects.  Given the timeline, the FBI cannot hope to gain information that might prevent an imminent threat that qualifies as a clear and present danger.  Coupled with the fact that the FBI has requested Apple to give it the tools to breach Apple security, instead of requiring Apple do it for them, it appears the intelligence community is simply using the incident to acquire the ability to hack into all iphones.

Judges are supposed to rule based on the Law, which is their area of expertise; however, the complexity of technology can often leave judges unable to properly assess how the laws should be applied. National Security officials, for example, like to draw an analogy between itemized phone bills and so-called metadata.  In reality, the insights metadata reveals about a person and that person’s live would require police to essential stalk that person for years.  In other words, the quest for mass metadata thoroughly violates any reasonable expectation of privacy or any sense of freedom, thereby invaliding any legal justification for such an intrusion. ​

In this case, the ability to hack any iphone at will would afford the FBI, as well as all other national security agencies, the capacity to access the personal data of all iphone users.  Given the abuse of easy access to metadata by the NSA and CIA that was uncovered by the Edward Snowden Revelations, the FBI is asking Apple and the rest of the tech industry to ignore an unsettling history of national security overreach and undo everything they did to prevent it from happening again.  They are also asking Apple to develop override methods that criminals and state-sponsored hackers can eventually exploit. 

China’s push to enact sweeping anti-terrorism measures that would require tech companies to either hand over encryption keys and/or engineer “backdoors,” a.k.a. vulnerabilities, into their software and hardware, is bolstered by the FBI’s overreach.  Recognizing US hypocrisy when it comes to national security overreach and the torture the US engaged in under the influence of the USA Patriot Act, China’s longstanding human rights record heightens concerns, yet China’s embrace of additional cyber security overreach demonstrates exactly why no government should be given open access to massive amounts of personal data.

Furthermore, national security interests must be balanced with civil liberties in order to safeguard citizens from criminals as well as government abuse.  To this end, the Courts have relied upon the “clear and present danger” test to determine if the government can lawfully act to prevent an imminent threat.  In failing to seek solutions that balance civil liberties with national security interests, the FBI is abusing the Courts to compel Apple to give it control over the private data and physical property of all iphone users.  It is doing so by circumventing the legal safeguards that prevent national security officials from doing as they please. 

In essence, the FBI is furthering the same faulted logic of The Obama Administration Department of Justice "White Paper" on the lawfulness of killing US citizens serving outside of the US as senior, operational al-Qa'ida officials.  The “White Paper” attempts to offer justification and guidance for so-called “targeted strikes,” yet provides little more than a meandering rationale of legal technicalities that better serves the abuse of power.  To that end, the White Paper offers readers some very troubling insights into how national security officials are justifying their actions against citizens.

Reading like an ill-conceived and poorly written undergraduate paper despite its significance, the DOJ White Paper fails to support essential arguments, such as the proclamation that Judicial, as well as Congressional, oversight, Due Process, and other rights of citizenship do not apply when dealing with threats to national security, while legitimizing the unchecked use of police/military force whenever the Executive Branch singlehandedly deems it necessary.

The document even attempts to extend the historic tendency of the Executive Branch to undertake the responsibility of foreign affairs, which the Supreme Court recognizes though the Constitution does not afford the President sole discretion over foreign matters, to include "targeted killings" of Americans. To be blunt, the lives and rights of American citizens are never simply foreign policy issues; therefore, the Executive Branch has no innate privilege to act without oversight, transparency, or limits.

The memo offers three seemingly reasonable conditions for authorizing lethal force against a US citizen acting outside of the US as a senior, operational official of al-Qa'ida and/or its associates:

1. "… an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States…"
 
2. "… capture is infeasible, and the United States continues to monitor whether capture becomes feasible…"
 
3. "… the operation would be conducted in such a manner consistent with applicable law of war principles…." (The four principles include necessity, distinction, proportionality, and humanity.)
It is reasonable to conclude the second and third criteria serve as necessary and proper safeguards for protecting US citizens.  The first criterion for authorizing lethal force against US citizens on foreign soil would be acceptable, except for the fact that the DOJ document thoroughly dismisses the Constitutional requirement for Congressional and/or Judicial oversight before it redefines the meaning of "imminent threat" to include any potential threat to US interests.

The memo then justifies the need to redefine the meaning of imminent threat in order to "incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans."  Because the "imminent threat" condition, originally offered by the Supreme Court, currently serves as a standard to guide the actions of law enforcement when snap judgments are required, these considerations are already part of the "imminent threat" concept; therefore, it does not need to be redefined.

The authors of the White Paper make the claim: the condition of an imminent threat "… does not require the United States to have clear evidence that a specific attack on US persons and interests will take place in the immediate future."  

They also proclaim "… the United States must take into account that certain members of al-Qa'ida (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa'ida would engage in such attacks regularly to the extent it were able to do so; that the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American causalities."

In making these poorly supported assertions, they fabricate a basis for declaring all al-Qa'ida activities to be "imminent threats."  Essentially, the White Paper presents an argument that the US is involved in a perpetual armed conflict with al-Qa'ida that has no geographically defined borders and involves an ongoing "imminent threat" as the terrorist network is constantly plotting against America. Consequently, any given senior al-Qa'ida official represents an imminent threat by the rationale presented.

Because the "battlefield" is so fluid and the potential consequences are so serious, which the document subtly extends justification for lethal action to include threats to all things declared US interests, the Executive Branch cannot be burdened by oversight and Due Process, i.e. the Constitution. Any US citizen on foreign soil suspected, or simply considered, by the Executive Branch to be a terrorist threat is, thus, subject to lethal targeting without Due Process or other legal protections, unless the current Administration deems it feasible to capture the "suspect."

Plainly, this argument would never pass an honest Supreme Court challenge while Americans cannot possibly accept such an open-ended, unilateral use of Executive power.  The threat of global terrorism may be great and require a highly dynamic response, but most of al-Qa'ida's activities involve day-to-day militant activities and do not automatically present "imminent threats" to the homeland or territories of the United States.

Consequently, most of al-Qa'ida's activities do not need to be addressed in such a timely fashion that the Executive Branch can justify its failure to seek oversight and some form of Due Process. In other words, unless an actual imminent threat to the United States exists or US forces are attacked by an American citizen while undertaking military operations against al-Qa'ida operatives, either a panel of judges or legislators needs to review the use of lethal force against some transparent, established standards when a known US citizen is the target of a planned overseas military strike.

Meanwhile, the Constitution demands oversight by the Legislative and Judicial Branches, including in scenarios where an actual imminent threat has been addressed. Failing to do so, undermines the US Constitution and the very reasons US citizens have protections against the actions of our government. Oversight and Due Process afford citizens protection against government corruption, but they also provide our national security professionals the ability to protect our Nation from threats without undermining our democratic freedoms and human rights. Thoroughly neglecting the oversight and Due Process requirements of the Constitution means the Executive Branch is overstepping its boundaries.

It is when government most needs to violate the freedoms and rights of its citizens that we need them the most. This means national security does not automatically trump the rights of a citizen as the "White Paper" asserts, especially the right to life, even when those citizens are senior officials in a terrorist organization plotting abroad to attack our Nation. The life of an American may be taken in the interest of national security, but some form of Due Process is required to ensure the irreversible act is proper and necessary.

The failure to balance the legal protections afforded to all US citizens with the need to address national security threats by the George W. Bush and Obama Administrations is a serious problem.  In fact, the manner in which the Obama Administration attempts to justify its past and present actions with the "White Paper" is far more dangerous than simply acting without legal justification as it is establishing a precedent for the Executive Branch to act independent of Congress and the Judiciary when the situation serves the interests of the President or subordinate officials. 

Although the hacking of iphones may not be as frightening as extrajudicial executions by unmanned drones, they both are examples of government stripping away necessary protections for the convenience of national security officials.  If the government successfully compels Apple to develop and surrender software that it can use at its leisure to hack into anyone’s iphone, that software will eventually be used by officials to violate the privacy of iphone users.  It will also teach cybercriminals and other governments how to do the same.  Frankly, the FBI’s request is far too broad and far too intrusive.