The battle of FBI with Apple erupted when a California Magistrate ordered Apple to help FBI open a cell phone belonging to one of the shooters in the San Bernardino attack last year in USA.

The FBI asked the court to order Apple to unlock the phone after attempting unsuccessfully to use its brute force to unlock the device on its own. A federal judge ordered Apple to bypass security functions on the iPhone used by Farook, one of the assailants in the December mass shootings in San Bernardino that killed 14 people, to unlock it. The FBI is presumably looking for other guys who Farook and Tashfeen Malik may have plotted or communicated. The FBI can’t get into the iPhone without the gunman’s passcode.

Using ‘brute force’ hacking to race through all the possible passcodes won’t work unless Apple writes software to disable a security feature that erases the phone’s data. And if one attempts 10 wrong passcodes, the phone erases all the data. Apple’s iPhone security is the most sophisticated feature that can never be used brute force.

The FBI, with its technology experts, has tried vainly to unlock that phone. The solution now lies exclusively in the hands of Apple.

Following the court ruling, Apple CEO, Tim Cook, vehemently rejected the ruling, "arguing that once Apple complies, the software would become a ‘Master key’ that could unlock hundreds of millions of other iPhones”. He further noted that "compromising the security of our personal information can ultimately put our personal safety at risk. That is why encryption has become so important to all of us”.

In today’s digital world, the "key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge. Apple is sided with the biggest names in tech – including eBay, Google, Facebook, Amazon, Twitter and AirBnB.

Apple’s sticking argument is for the safeguard of their customers’ privacy rights around the world. The key question is how to balance privacy rights and national security interests. Balancing privacy with other competing values, including national security matters, is one of the biggest challenges of the digital world. Nonetheless, it’s extremely important to note that, though privacy is an inherent right, it would be unpersuasive to assert that this right is absolute, and that in case of conflict with national security interests, privacy prevails.

One thing can, however, be said once the US law enforcement succeeds in compelling Apple to unlock the terrorist iPhone, then it is likely to compel any other software provider to do the same, including compelling the secret installation of malware via automatic updates to your phone or laptop’s operating system or other software. In other words, this isn’t just about one iPhone, it’s about all software and digital devices, and if this precedent gets set it will spell digital disaster for the trustworthiness of everyone’s computers and mobile phones.” And this would obviously set a troubling precedent. 

On the contrary, just on February 29, 2016, a Magistrate judge of New York, James Orenstein, ruled in favour of Apple, in a case of executing the warrant to search Feng’s residence and iPhone, who was suspected of his involvement in drug trafficking in New York.

The US authorities properly seized several mobile devices, including Feng’s iPhone that used Apple’s iOS operating system. The government noted that it failed to search Feng’s device without Apple’s assistance. The Court noted that the government failed to establish necessity for compelling Apple to unlock Feng’s iPhone. But in the latter case, privacy issue wasn’t the bottom line, the bottom line was to create a back door that bypasses security feature of all iPhones probably. To Apple, the ruling was received in acclamation and was seen as a victory. The key question is how best to balance those national security interests is a matter of critical importance to our society and privacy rights. Today, legislators need to consider a balanced approach in the light of the technological and cultural realities of the world.

Privacy is one of the most threatened basic rights, if not the most, by the advancement of modern communication technology. Prior to taking any action that tramples upon privacy rights impact assessments should always be performed.In many countries, including EAC member states, the waiver of privacy rights is subject to legal authorisation. For example, in Rwanda, a law regulating the interception of communication provides that interception ofcommunications shall be considered lawful where it is done in the interest of national security and in accordance with the law. To put it in a nutshell, interception of communications is allowed as long as it is in line with national security interests and backed by an interception warrant.  In that case, privacy rights can be set aside for overarching interests. From a human rights perceptive, however, privacy is seen as one of fundamental rights laid down in numerous human rights instruments, hence cannot be disregarded unjustifiably.

Fred K. NKUSI is a lecturer and international law expert.