The ongoing debates at the primaries for the presidential race have certainly pepped up life in the US. If this is not enough, two other events of the past fortnight have added vim to public discourse on that country. These are the propriety of filling the Supreme Court vacancy caused by the unexpected death of Justice Scalia during an election year, and the refusal by Apple corporation to an FBI request for unlocking the telephone of Syed Farook who, along with his wife Tashfeen Malik, opened fire at a San Bernardino county public health office training centre on December 2, 2015, killing 14 employees.

Of these controversies in the US, what is most relevant to India is the FBI-Apple tussle. Just a few years ago we saw the battle between the Union home ministry in New Delhi and Blackberry (previously Research In Motion) Limited over encryption of all Blackberry communications. The home ministry then insisted that the whole of Blackberry traffic should have to be seen by Indian law enforcement agencies before it was encrypted. Blackberry took the position that submitting to such a directive would dilute the high security standards on which it had built its whole reputation and clientele across the globe.

Major standoff This standoff continued for quite a while, until some government arm-twisting — including an alleged threat to blacklist the company in India — made Blackberry yield ground. An identical situation is now developing in the US.

It all started with the FBI taking up investigation of the San Bernardino shootout and wanting to analyse data carried by an Apple iPhone 5s used by Farook. The phone is the property of the county office for whom Farook worked.

The FBI believes that the phone carried valuable information on the activities of the two accused and their possible associates. But it has not been able to break the passcode that Farook had used. Hence it has asked Apple for assistance to break the code and look at all the data the phone could be carrying.

Apple CEO Tim Cook has declined to comply with the court direction. His stand is that Apple does not know the actual passcode that Farook had been using, and that any guesswork would halt the system of entry after 10 unsuccessful attempts and result in the immediate deletion of all the data.

Realising this possibility, the FBI wants Apple to construct a programme that would skip the existing security architecture and help retrieve the data in toto.

Apple has, no doubt, conceded that it is technically feasible to write such a programme — a kind of malware — that could help satisfy the FBI’s needs. But it is firmly of the view that such an unorthodox break-in would affect Apple’s brand value as a producer of unbreachable products, such as the iPhone.

Critical factors This has triggered a major public controversy. One commentator has gone to the extent of slamming Apple, saying that the company did not mind imperilling national security just to protect the privacy of a dead terrorist! On the face of it such a savage attack on a reputed iconic corporation seems uncharitable. But then, since the US has shown itself greatly vulnerable to homegrown terrorism, any private sector obstinacy that stalls terror investigation is bound to be unpopular.

There are two points for consideration in critically evaluating the Apple posture. Ignored is the fact that the FBI is not seeking to search the phone of any law-abiding citizen. The case against Farook is not imaginary. His barbarism compounded by his wife’s was open and calculated. He had been hugely radicalised and had planned his brutality well in advance and in concert with his wife. If the couple had not been killed in the police encounter within hours of the horrific crime, they would have gone on to snuff out more innocent lives.

The second factor that should persuade Apple to give up its intransigence is that this instance of search of a phone is not reckless or unlawful because it is court-permitted and one based on solid facts collected and assembled by the country’s principal investigating agency. There is no malice or caprice involved. When a safeguard such as the application of mind of a judge precedes access to a phone without the consent of its owner, where is the question of arbitrariness?

Real fears Apple’s fears of this case becoming a bad precedent are real. But then, the fact is, in every such request from law enforcement, there will be a judicial seal of approval, which reduces subjectivity and the apprehension of a mindless never-ending series of requests to a service provider. In balance, it appears prudent for Apple to climb down from the moral high ground it has taken.

In writing this column I tested the ground through quizzing two young Indian American citizens now on a private visit to Chennai. One is an alumnus of Columbia University, and the other currently an undergraduate at the same university. While they believed privacy was a non-negotiable factor, they were willing to concede that security was no less important.

Their only concern was the kind of racism that prevails in the US criminal justice system. Their poser is: Where is the guarantee that the judge permitting the search of a phone will exercise his powers without a bias? They added that, as in the case of arrests and incarceration, it is possible that only the phones of minorities will again become targets. I had no answer.

The writer is a former CBI director who is currently Adviser (Security) at TCS

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