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Government Encryption Request Would Make iPhone Vulnerable, Olson Says


The lawyer for Apple is in our studios this morning. Ted Olson represents the company in its fight with the federal government over unlocking an iPhone. He's a lawyer involved in one giant case after another. For starters, he was the government's top lawyer under President George W. Bush. He was also a lawyer in one of the landmark cases that legalized same-sex marriage. Now this involving an iPhone used by a San Bernardino shooter last year.

Mr. Olson, welcome to the program.

TED OLSON: Thank you very much, I appreciate it.

INSKEEP: As you know very well, this case has stirred such passion. You're resisting an order in a terrorism investigation - or, resisting a federal request in a terrorism investigation. What in the law allows you to say no?

OLSON: Well, what in the law requires us to redesign the iPhone, to rewrite code, to provide an Achilles' heel in the iPhone? It was designed to protect the secrecy and privacy of individuals who use the iPhone. It was - people wanted to be able to trust their personal information to the iPhone. It was designed in such a way to prevent this sort of back door that the government is seeking.

INSKEEP: You designed that, but aren't you required under federal law to assist a federal investigation if you're asked?

OLSON: Well, of course, up to a point - if a landlord was required to unlock a door. But a landlord isn't required to build a door or to build a key or to build a lock. What the government is asking Apple to do here is to redesign this particular iPhone, to take weeks of its engineers to put together a system to disable the systems that Apple put in the iPhone in the first place.

INSKEEP: Basically to get around the code, the passcode, that you use to get into the phone.

OLSON: They want various features to be changed so that you could get around the passcode. This would apply to any iPhone - hundreds of millions of them are out there. And so it will require reinventing a less effective iPhone.

INSKEEP: Let me challenge you on the idea that this is a slippery slope, it could apply to any iPhone. Isn't it true that what they're asking for would require physical possession of the phone? The FBI would actually have to get ahold of somebody's phone - as they have in this case - in order to use it. It's not that somebody - the National Security Agency - could reach across the world and get into your phone with this operating system change.

OLSON: Well, that's - I don't think that's correct. I think that yes, in most cases the FBI or a local law enforcement official will have the cellphones themselves. In fact, the district attorney of Manhattan said, I have 175 cell phones, I need to use this same technique to get into those cell phones - and not just terrorism cases. And yes, I think the FBI could seek such relief for a phone that it doesn't have possession of. It might know that some suspected person - bad person - was someplace else and would want access to it in various different ways.

INSKEEP: Ask Apple to write some other software that would allow to be hacked from a distance, you're arguing?

OLSON: Yeah, there's really no limitation if the federal government, through a judge's order, can ask you to redesign your own products so that maybe they can be accessed from a remote distance.

INSKEEP: Hasn't Apple already said yes to the federal government in other cases and even in this case? Didn't Apple help get some information off this phone that had been backed up - stored in the cloud, where it was more accessible?

OLSON: Yes, and unfortunately, the FBI changed the passcode and stopped its ability to get that information. Apple has cooperated in every way in every federal or state criminal investigation up to the point that the law permits it. Apple wants to help, and Apple has always wanted to help any kind of investigation, especially a terrorism investigation, but it has to draw the line on designing a product that it makes it ineffective...

INSKEEP: When you said the FBI changed its passcode, we should explain - the FBI may have had a back door into the phone and you're saying that they screwed up and basically accidentally closed the back door. If that's true, what's the difference here, really, in this case? I mean, they could've gone into the phone.

OLSON: Well, they could have, and what we're saying is what they're trying to do now is have Apple - it's very important to understand this - to have Apple redesign a code, computer code, that would make the iPhone vulnerable, provide an Achilles' heel so people could defeat password encryption.

INSKEEP: Two very quick questions. Marco Rubio, Republican presidential candidate, in the debate last night said Apple doesn't want to do this because they think it hurts their brand. Isn't that true? This is a sales model, this is a business model. You want to be able to sell a phone the U.S. government can't get into.

OLSON: It's unfortunate that people all running for office say these kind of things without thinking them through. What Apple is - been entrusted by hundreds of millions of people, including people in places like China, where it's so important that they protect the secrecy of their own information, they may be put to death if the government can get into this thing or if a hacker can. So what Apple is attempting to do is to protect the integrity of the product that hundreds of millions of people depended upon.

INSKEEP: Very briefly - I know this is very personal, forgive me for bringing it up. The FBI is saying that they could get information off a phone like this that could prevent a terrorist attack. That's personal for you, as people will know, because your wife was killed on 9/11. Has it been hard for you personally to dismiss the FBI argument?

OLSON: We care very, very much - and I do, personally - about any instance of terrorism or an effort to prevent it or redress it, but we have to balance our constitutional rights and make sure that we protect what America is all about. And so they - we can't cross the line of giving up protections that are built into our Constitution. Terrorists want to tear that down. We can't give into that.

INSKEEP: Ted Olson, thanks very much.

OLSON: Thank you, Steve.

INSKEEP: He was solicitor general in the administration of President George W. Bush and now represents Apple in the case over opening - unlocking an iPhone. Transcript provided by NPR, Copyright NPR.