Robert Robb

opinion columnist

The implication of what the federal government is demanding that Apple do regarding the smart phone of the San Bernardino terrorist is not being fully understood or properly framed.

The government isn’t demanding relevant information or material that Apple possesses. Such demands, backed by court orders if necessary, are ordinary and appropriate in criminal investigations. Apple has already provided the government what it has that fits the usual kind of document demands, including information the terrorist had stored in Apple’s cloud service.

However, the terrorist quit backing up his phone on the cloud several weeks before the attack. The FBI can’t figure out how to bypass the security features on the phone. Apple currently has no way of doing it either.

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So, the government sought, and received, a court order requiring Apple to create software that could be loaded onto the phone that would enable the FBI to circumvent the security protections and access the phone’s content. Such software doesn’t currently exist.

Apple has vowed to fight the order, saying that the government is basically ordering it to develop a backdoor to its phones that would compromise the security of the data of all its customers.

Apple can't turn over something that doesn't exist

That, however, isn’t the real point. The government, in the course of a criminal investigation or intelligence gathering related to terrorism, can’t conscript private parties into its service. The government can require Apple to turn over anything relevant it possesses. It has no authority, in the course of an investigation, to require Apple to create something that doesn’t exist. And neither does a judge. That’s contrary to our system of law.

The question of whether there should be a general statute, enacted by Congress, requiring phone manufacturers to include a backdoor that would enable law enforcement in the course of an investigation to override security features is a different matter entirely. The manufacturers claim that would open up their phones to criminal hackers. Law enforcement officials assert differently.

I’m inclined to believe the manufacturers on such a technology question. Regardless, a general law hasn’t been passed by Congress. And until it is, the government shouldn’t be able to conscript Apple to create backdoor software that doesn’t currently exist through a court order in an individual criminal investigation, regardless of how important and high profile.

Reach Robb at robert.robb@arizonarepublic.com.