Our intelligence community needs some help from Apple to access encrypted information they believe can be secured from a cell phone recovered from one of the San Bernardino terrorists. The government believes the information may help it identify other enemies with whom the San Bernardino killers may have shared their plans. Apple argues that they are being asked to develop a “back door” soft wear program which would which would by-pass the built in security programs in their iPhones and allow the government to penetrate encryption programs now protecting the privacy of Apple’s customers. The government, arguing that the development of a soft wear by-pass is necessary for national security, and has gone to federal court and secured an court order directing Apple to comply with its request.
The Regulations To Support Anti-Terrorism By Fostering Effective Technologies (the SAFETY Act) was passed as part of the Homeland Security Act to encourage potential manufacturers or sellers of anti-terrorism technologies (ATTs) to develop and sell technologies that could reduce the risk or mitigate the effects of large-scale terrorist events by limiting legal liabilities that might otherwise be faced by such developers and sellers for injuries and losses sustained in an act of terrorism. The Act creates certain liability limitations for “claims arising out of, relating to, or resulting from an act of terrorism” where qualified ATTs have been deployed. The Act does not limit liability for harms caused by ATTs when no act of terrorism has occurred.
I recently delivered back-to-back 90-minute lectures to three groups of New York City high school teachers on preventing violence from erupting in their classrooms. Amazed at the statistics regarding the size of the damage awards that have been paid out by the city arising out of negligent security claims against its public schools, the groups began to perceive the nature of the problem from a new perspective: that of a litigant.
The fact that al Qaeda terrorists developed specific plans for the targeting of several financial institutions for acts of terrorism is significant for anti-terrorism planning — regardless of the age of the information. The question is not whether the intelligence should be disregarded because it was three or four years old , but rather what the appropriate response should be. Differences in opinion over the wisdom and motivation of the information release aside, attention must be focused on how to respond to threats of terrorism believed to be legitimate; whether there is any real value in a show of force; and what long term impact will such information have upon the designated target(s), and upon society.
When, two years ago, a group of former law enforcement and military personnel came forward offering to provide screening and other security operations to fill the gap created in our airports by the change over from private security companies to a federal worker program, the idea was met with resistance from the federal bureaucracy.