By Max Skalatsky
Every week, I read and hear how the U.S. government—specifically, the FBI—is attempting to subpoena texts from Apple and why Apple must not only turn over these key pieces of evidence but also eventually open up the iPhone and its other devices. As a former Special Agent and a current consultant who focuses on technology and security matters, I want to throw out a point of view that could potentially shed light from a different perspective.
To start, I will concede that it is logical and understandable why the FBI or any Federal agency is asking for this access. However, it is not as material to the overall investigative strategy as what everyone is led to believe in the court of public opinion, which is where we are right now.
Here is what I am talking about: when I first got in the Bureau, the bad guys were using VOIP and Internet chat rooms to communicate while the FBI was busy tapping land lines and doing trash runs to collect data. Back in 2005-2006, it was still pioneering case work to issue subpoenas to Google, Yahoo, or Microsoft to get access to someone’s e-mail, as the FBI was still unsure of the true value behind e-mail communication—or at least how to quickly ascertain information from those giant technology companies.
Fast forward to the present. The FBI and everyone else who thinks that they need this information by entrenching on one side of the debate is missing the entire point: by the time Apple concedes or even loses in court, the criminals will already be two to three steps ahead on communication and ways to circumvent law enforcement. One of the main reasons for this is because it will be known that Apple and potentially others must cooperate by providing the ultimate key, which means the bad guys will find new ways to communicate.
So instead of Apple and its enormous technology peers trying to out-argue the Federal government on its backwards and reactionary thinking, is it possible for those companies to play offense and to engage with the policy makers and law enforcement leadership by sitting down and understanding what the next generation technologies will be? This change in strategy could potentially lead to compromising on getting “special” access for the future wave of products and move the needle from confrontation to collaboration. The past is the past, and to think that there will be some magical revelation coming from these text messages or other ones is simply not the case.
If there is a different approach to this hot debate and an honest dialogue of what these messages actually mean to the San Bernardino terrorism case, then maybe there is a better method to get both sides working together instead of trading barbs in the court of public opinion or going down the dreaded legal path.
As a Duke grad, I am slightly biased in my thoughts of Tim Cook and the rest of my classmates at Apple of how that company is paving the way for convenience and access. On the other hand, I would be disappointed if narrow-minded thinking by the bigger powers at be forced Apple’s hand to fight this out, while the bigger picture of safety versus convenience remains out there.
Bottom line: the criminals will always find a different route to mitigate and avoid the best law enforcement agencies in the world. Instead of scrambling to get the very latest tools to fight them post mortem, the FBI should consider a forward-thinking strategy to identify what could happen in 3 to 5 years, not what occurred 3 to 5 months ago.
With issues of this magnitude, there is no silver bullet. All I am suggesting is to slow down the traditional brute force that my former friends can deploy at will and trust that my current ones will do what’s right: figure out a logical, safe way to protect us against the 0.0001% by providing some solution that only very few in the world know while allowing the rest of us to enjoy the technology and devices we all love to use.
Max Skalatsky is currently a Manager within the Technology and Management Consulting practice at RSM, a global consulting firm. He formerly served as a Special Agent with the Federal Bureau of Investigation, focusing on international terrorism investigations. The views expressed are his own and may not represent those of the FBI.