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March 04, 2016

In Case You Missed It: Aguilar and Feinstein Editorial on Apple Encryption Case

Yesterday, Rep. Pete Aguilar and United States Senator Dianne Feinstein (D-California) co-authored an editorial for TIME on the Apple encryption case. In the editorial, Rep. Aguilar and Senator Feinstein argue that Apple should help investigators preserve data on an iPhone left behind by one of the terrorists in the San Bernardino attack, which could potentially expose important information related to the investigation. They contend that refusing to comply with a court order in this particular investigation creates gaps in the United States’ national security. The editorial can be read in full below or at

Rep. Aguilar represents California’s 31st Congressional District, which includes the City of San Bernardino. He serves on the House Armed Services Committee, including the subcommittees on Strategic Forces and Emerging Threats and Capabilities. Senator Feinstein is the senior United States Senator from California and is the ranking Democratic member on the Senate Intelligence Committee.

The Dec. 2 terrorist attack in San Bernardino, Calif., will forever be etched in our memory.

The shootings—the deadliest terrorist attack on U.S. soil since 9/11—left 14 dead, 22 injured and shook our community to the core. We grieve for all the families who will forever be affected by this tragedy. And we offer our thanks to law enforcement agencies for their diligent work on this case.

In the weeks that followed, local law enforcement and the FBI worked together to uncover details surrounding the attack to learn more about what happened and why.

But last month, Apple CEO Tim Cook announced that the company would not cooperate with an order from a federal district court requiring Apple to assist the FBI in unlocking the assailant’s iPhone.

The terrorists who carried out the attack at the Inland Regional Center left behind the locked and encrypted iPhone, which is actually owned by the San Bernardino County Department of Health. Despite a warrant issued in the case and consent from the county, investigators have been unable to unlock the phone and access information that could help with the investigation.

In the past, Apple has worked with law enforcement to retrieve data from locked devices in certain situations. This case should be no different; in fact it should be easier since Apple is not being asked to retrieve data in this case. That’s why we’re urging Apple to abide by the judge’s court order so this investigation can continue unimpeded as law enforcement continues to work to prevent heinous terrorist attacks like this from happening again.

While this incident has generated a great amount of controversy regarding security and privacy, we think it’s important at this time to focus just on the judge’s order in this particular case. Other requests by the Justice Department and other jurisdictions should be evaluated on an individualized basis.

The court order in this case requires Apple to prevent the attacker’s iPhone from having all its data wiped while law enforcement attempts to unlock the phone. Access to the phone could provide a window into the terrorist’s motives and shed light on this attack in the broader context of the fight against ISIS. The merits of other cases should not interfere with the investigation of the San Bernardino attack.

Complying with a judge’s order and helping authorities investigate this terrorist act does not compromise Apple’s commitment to privacy. Rather, it supports the duty of law enforcement to protect and serve, and it aids in pursuing justice for the innocent lives lost at the hands of terrorists.

In addition, privacy rights are not afforded to the dead, and the assailant was killed in a shootout with police following his rampage at the Inland Regional Center.

Individual privacy rights also do not cover another person’s property. The phone in question was not the individual property of the terrorist. It was his work phone and belonged to the San Bernardino County government, which has consented to the search.

Warrants executed in this investigation have exposed every other aspect of the San Bernardino terrorists’ lives; why should they also not extend to the iPhone simply because it’s an Apple product?

In the almost 15 years since the Twin Towers fell, those who wish to do us harm have turned to more advanced ways of recruitment and radicalization, including infiltrating social media platforms and using encrypted communications.

As these operations grow increasingly complex, we must do everything in our power to disrupt and destroy the terrorists’ communication methods. That starts with uniting the intelligence community, law enforcement and technology companies with these common goals.

In an increasingly dangerous and unpredictable world, we need the technology sector and law enforcement to work together to keep our communities safe.

Legally, Apple should cooperate with the FBI’s request and the court’s ruling to prevent the phone from destroying all the data and expose possible critical information in the investigation.

Morally, we should do everything within the confines of the law—which includes following the court’s order—to see this investigation through and seek justice for the victims’ families.

Refusing to help law enforcement and the intelligence community risks the safety of Americans abroad and at home and leaves gaps in our national security. Our partners in technology can and should do everything in their power to help the FBI get the information it needs to prevent future terrorist attacks.