Every phone that it sold. Apples c. E. O. Tim cook talked about this issue in an interview last fall for 60 minutes and this show. On your iphone there is likely health information, there is financial information. There are intimate conversations with your family or coworkers. There are business secrets from the work that you are doing. There are also tracks of what you searched on, information about what youre looking at and writing. Maybe you are a journalist so even your sources. All of this stuff is incredibly personal and we believe incredibly private and you should have the ability to protect it. The only way that we know how to do that is to encrypt t. Why is that . Because if there is a way to get in, then somebody will find a way in. There have been people who suggest we should have a backdoor, but the reality is that if you put a backdoor in that is for everybody, good guys and bad guys. We dont know the way nor do i know of anybody else who came up with a way to safeguard your information unless we encrypt it. Charlie does the government have a point where they say we have good reason to believe that in that information there is evidence of criminal conduct or National Security behavior. If the government lays a proper warrant on us today, and it has been to the courts and so forth, we will give the specific information that is requested. We have to by law. In the case of encrypted communication we do not have it to give. Like your eye messages are encrypted, we do not have access to those. Your face time charlie help me understand how you get to the government dilemma. The problem saying i do not believe the tradeoff is privacy versus National Security. I think that is an overly simplistic view. We are america and we should have both. We should not give up National Security for privacy and we should not give up our security for privacy. I believe we can have both. Charlie we turn to two men who have been tangling with apple encryption issues. The District Attorney for the county of new york. John miller is the nypd deputy for counterterrorism. I am pleased to have you on this program. Tds a continuing interest of this program to talk about it. How important of an issue is this . It is a very important issue for Law Enforcement at the state and local level as well as the national level. Since apple changed its operating system in the fall of 2014 to reengineer it so that phones could not be accessed even with a valid warrant, using have been 175 cases the new operating system that we are not able to get into to look at phones which need to be analyzed to build criminal cases and indeed to make sure we are prosecuting the right person. Those cases range from homicide to sex abuse to cybercrime. At the state and local level where 95 of the cases are handled, our inability to access data on cell phones which are being used by criminals to communicate and to store data is a real problem. Charlie you or send this is important for you more than just a case of the San Bernardino phone . That case presents one example of a case involving terrorism where the federal government believes Critical Evidence may be on that phone. There are tens of thousands of other cases around the country in investigations relating to homicide and sex abuse were data is going to be on smart phones that they need to access with a court order to work to do the right thing and get the right result. Charlie so if somehow the government can get the company to give them away into the phone, you want the same kind of right to get access to phones involved in cases under your jurisdiction . We have asked apple to do something very straightforward. Until the end of september 2014, apple maintained its own key. Not a key that i held. Not a key that other Government Agencies held. They could unlock a phone when we presented them with a court order. Submitted to a neutral judge saying there is evidence on this phone that relates to this person. We ought to be able to look at that data. I am asking apple to return to time ber 2014, it is a when apple made no complaints that the operating system it was using was insecure. Would like to read to you from apples own statements about software h is the immediately preceding iowas eight. Ios 8. Apple described its software as technology that ensures ios 8 devices can be used with confidence in any personal or corporate environment and went on to say that it provides solid protection against viruses, malware and other exploits that compromise the security of other software. Ios 8 uestion is has the engineering to prevent government accessing these phones is it an issue of the receipt or an issue of marketing . Because ill doping apple has made the specific case giving us examples. Charlie are you questioning the motives of the ceo . Im not calling anyones motives into question. Im making the factual point that in september, apple was able to respond to courtordered search warrants and was never a complaint that s 7 was an operating system hat was insecure or that my data was at risk of being stolen. I dont know what changed twins october 30 and october 1 when introduced ios 8. I think that they made a decision consciously to engineer out of their phones the ability to open them and i think that apple is a great company, a phenomenal company, as is google, but no company is above the law and we have relied upon Fourth Amendment pencils where reasonable searches were permitted if judges concluded that there was probable cause. Evidence of a crime. Charlie i assumed the reason they did that is they did not want the responsibility of wanting a backdoor and they said the best way for us to protect the data within a phone that we sell is not even to get us to encrypt it so well that we do not have access to it. That may be the best way to rotect the data, but it is not an answer for government to be able to access that data to protect private citizens and to find a path toward justice for victims whether it is a case of terrorism or a case of state crimes like rape, homicide and assault. I think that it raises a series of interesting questions. This is something that technically everybody believes that apple can do and theyve elected not to do it. Because they have chosen to make a stand here. Why they would make a stand here raises a couple of questions. Number one, their core principle is that they have to protect the privacy of their customers. In the case of this phone, hose two customers are dead. 24er7 two terrorists killed by police in San Bernardino. Why are they protecting people who have no right to privacy or who are confirmed terrorists. One question is, why are they making a moral stand on a case where they are not on the side of the angels. Bad for apple and probably good for the fbi. The other question is when you talk about this in the way i find offensive is when the government wants a back door. They go to a judge to make a showing of probable cause to show a crime has been committed and they get a search warrant signed by a judge and they go that ompany and hand paper over, that is not a backdoor. Thats a front door. Thats how we work at a democracy. Thats how we protect other eople from other crimes. Charlie having said that, you are suggesting that apple can access this particular phone if they want to . I believe there tos are remarkable when it is their desire. I will tell you a story and District Attorney advance was there for all of this. A couple years ago, the manhattan da, the San Francisco da and the Police Commissioner of new york began to go after apple because the rise of Violent Crimes connected to people having their phones stolen people were being beaten and attacked. These phones were being stolen. We approached apple and said isnt there a way that you can zap that phone remotely and make it useless. If people cannot resell that phone they wont steal it. Apple spent a long time telling us all the technical reason that was impossible until the publicity got too hot. Until they felt that it looked bad and then they fixed it in five minutes. When you hear a story from the technical geniuses of the computer and Software World but suddenly they cannot do something, what are they asking . Theyre asking them to go into the Information Program and disable the key that says after 10 failed password guesses it will erase the data. The fbi is also asking them to give them an automated process to try combinations of password since we are confident they will not be able to get it with nine guesses to access that phone. What is so important in that phone . We do not know. We know that they destroy their hard drives in computers and other phones in this surviving device may contain information that matters to me. As the head of counterterrorism and intelligence in new york city, i want to know, did somebody order them to do that . Re there communications or notes in that phone, and if so, is that person identifiable . Did they talk to someone in new york . Is there another plot being planned . Tim cooks approach is that he is doing this for the protection of apples customers. I get that on a privacy level on one level, but how that translates into ignoring an order from the court with her other customers charlie, how many People Killed in the theater in paris or San Bernardino died with iphones in their pockets . They are apple customers, too. We have to care about them also. Charlie so what are you asking for. What do you want apple to o . D. A. Advance put it perfectly which is a parallel universe just a year ago, they had a key that could open any phone pursuant to proper legal process. Try what you want them to go back to that . Yes. Thats how we deal with banks and Financial Institutions and ther holders of records. There is not a safe or apartment or safe deposit box or anything else that you cannot show up with an order from a state or federal judge. Charlie my point is this is about more than the one phone that belonged to one of the terrorists in San Bernardino. Youre going to use this as a way to expand the access of Law Enforcement to the phones of people you believe have committed or are associated with criminal actions . It is and it isnt. First, what the fbi is saying is let apple figure out their way into this phone and then throw that key away. T is a onetime thing. But you do raise a point. Let me put it this way. If an executive at apple had a member of their family kidnapped, all of this high horse stuff would end quickly. They would have their engineers opened that phone and it would be done in a short time. With or without a court order. If we grab someone at the ransom drop and said the clue to that kid is in this device, they would figure that out. Charlie and they are not now. They are not because they have chosen to make this stand on this case. Charlie they believe it will be a precedent. Thats the point that tim cook continues to make. This will be a precedent that will be time and time again. I want to quote apple. Let me tell you what they said about ios 7. Apple describe this strong encryption and told the public they could maintain the ability to help with Police Investigating robberies and other crimes, searching for missing children, trying to locate a patient with alzheimers disease or hope hoping to prevent a suicide. Dont take my word for it. Take their word for it. Apple felt ios 7 was secure and recognized they had a responsibility to help police and the public. Suddenly overnight they changed their tune. I happen to believe it is a reflection of Market Forces that they need to address. Charlie what Market Forces . To say that our phones are more secure than any other phone and anyone who would like to hack them cannot because we have an encryption process . That is exactly right. Charlie, dont take our word for it. Take the bad guys word for it. Ask District Attorney vance but about the tape he has were a prisoner is describing to his colleagues on the street how important it to avoid hey get ios 8 scrutiny from Law Enforcement. If our phones are running ios software, the can open the phone they cannot open the phone. That may be a gift from god. Apple and google should not be in the business of giving gifts from god. Charlie you want access to all of those phones that you think are crucial in a criminal proceeding . Absolutely right. What we are asking for is what i think the Fourth Amendment permits us under the constitution to do. We cannot conduct unreasonable searches and seizures. That is what the constitutional law says. When the judge issues that order, what is the definition of reasonableness, we are doing something that is necessary and reasonable in order for us to fulfill our mission to the ublic. Charlie why has google and all these other Companies Come to support apples decision . I think there are a couple of things going on here. In the post Edward Snowden world, a report came just this week saying his claims about government collection of americans and Internet Communications were wildly overstated. Hat perception is reality. In the post snowden world, Companies Like apple and verizon and google all felt threatened that their customers may have thought the betrayed them because of some of the overreaching reporting. I get that. As the District Attorney says, a bit of this is a marketing game, but at the end of the day, it will probably not be the fbi against apple with the court as an arbiter that tells the bigger question that you keep raising that it is not just about this one phone. Ben franklin is the person who said that he who trades liberty for security is a fool who eserves neither. Charlie are you asking them to trade liberty for security . Not at all. We dont trade privacy for security or liberty for ecurity as a government. The way that works as a democracy is the people decide where to set those tolerances. They do it based on the current conditions, how much is the need to, what are the threats in the security world . They go to their lawmakers and tell them what they expect. At the end of the day, the ultimate fix will probably be based on legislation driven by the people. We have seen throughout our history the phenomena where businesses have a product that becomes ubiquitous that everyone uses that they have a Corporate Responsibility to address how to protect victims of crime from the very product that the business is selling and is being used. Lets tank banks. Sure banks were not enthusiastic to file currency transaction reports which is a document of more than 10,000 when cash is moved. We understood that criminals were moving money through banks and banks had to recognize that they had a responsibility. And the moneylaundering rules that apply to banks. The preservation of documents and the like. Its expensive for the banks but they have a responsibility to do that even with the government said that Telephone Companies had to provide an access point for wiretaps to maintain a link to the line because we all understood criminals were using telephones and the phone companies had a responsibility to protect their customers and the community. Apple and google have said charlie most of Silicon Valley is supporting apple. Most people who are supporting apple have let apple and google on their own drug draw the line where security and privacy should be balanced. They have done it independently and they have drawn it all the way over here which happens to coincide with their economic selfinterest. Charlie what with allegedly would the legislation you would like to see say . I would like to see it reflected the khalil law. If you have a laptop to that to have a platform people communicate on needs to be with lawful orders. Charlie procedures that provide new course and all that . And consider privacy and the constitution and everything else. To be able to get into those hings and provide for stopping criminal actions, bringing cases, saving lives and as the d. A. Says you cannot just that you put aside will put yourself above the law. I think thats what the egislation is. They do so much more than that so it does not apply to them. We lost our way. The bad guys have figured this out and terrorists have figured this out. We have seen this in real life. In San Bernardino and other places. Its just that the business has not figured out this is about more than them and the customers. Charlie i am perplexed as to why this issue, this debate between security and privacy, freedom and security, everybody talked about. Even the president in an interview with me talked about it, finding the balance. We have not found the balance. I believe that it is unfortunate that our legislators in the public were not aware enough of this issue when we shouldve been so we couldve addressed it at an early point in time. Apple and google made an independent decision. They own the companies. They changed the phones and so they reset the rules. Frankly Law Enforcement was unaware this was going to ham. At the same time, if you put it so far over Public Safety what youre going to get is a world with lots of privacy and a lot of crime. They can use them to ommunicate with each other without fear of ever leaving vidence. I dont think thats the world merica wants to live in. America was to live in a world that balances privacy in public afety . We have gone far beyond that at this point. I think that apple and google will come to this voluntarily. Charlie you used to work at the fbi. The director of the f. B. I. Has been having talks with these people in Sili