We all watched in horror when on December 2nd, 2015, 2 radicalized individuals shot 36 innocent people in San Bernadino California, killing 14 of them, before dying themselves in a shootout with law enforcement.  It was yet another impactful example of terrorism occurring on North American soil as opposed to unfolding in a continent far away, once again bringing fear to the western world.

In the weeks following, FBI investigators determined that over a period of several years, the male and female couple had become radicalized over the internet, and during that time had even travelled to Saudi Arabia.  A large cache of weapons, ammunition and materials for making explosive devices were found in their residence and a former friend and neighbor was arrested and charged with a variety of related offenses.  It remains an ongoing and complex investigation.

Most recently, because investigators were unable to access the information within the encrypted Apple mobile phone of one of the suspects, they sought and obtained a court order to force Apple to break the encryption code of that one phone.  Not all of the other billion Apple devices that are similarly protected, but this one that MAY provide links to additional conspirators and/or international terrorist ties.

It is a legal argument that I suspect will soon test law enforcement north of the 49th parallel, as well.

I totally support individual rights to privacy, as do all of Canada’s police chiefs and their respective associations.  It is a foundational piece for the society of which we are so proud in Canada.

But this is not a case of authorities trying to solve a more trivial crime.  It’s not a downed rural mailbox, or a shoplifting case.  Nor is it a run of the mill burglary (although all of them are devastating to their victims), which is a fairly serious crime.  This is a matter of “national security” and a thorough investigation may result in the prevention of horrendous attacks and loss of life.  It does not get much more odious than that.

I get the broader corporate and public concerns that this is a slippery slope from a “right to privacy” perspective.  IF the method used to break the encryption on Apple products falls into the wrong hands, the consequences are also frightening from a national security perspective.  It’s undoubtedly a double-edged sword.  

But in my view it’s much more worrisome that organized crime and terrorist groups are already operating with relative impunity in the western world.  Security agencies do not need yet another privacy rights hurdle in their efforts to disrupt and dismantle those that have little respect for human life. 

Over the past 20 years, Canadian law enforcement leaders have pushed for legislation that would obligate telecommunication companies to design a “back door” into new technology before it is released to the public.  Judicial authorization would have to be obtained before officials could access it of course, but that goal all died on the legislative table with the now defunct Bill C30.

In this U.S. case, surely the FBI could bring the phone to Apple’s engineers to retrieve the pertinent info and deliver it back to the investigators without compromising the specific process they developed to access the information.  It would likely be an evidentiary nightmare in court in terms of an Apple employee/witness testimony perspective, but the option of simply saying “no” is not acceptable.  We have to acknowledge that the most egregious of offences may require a different but rigorous legislative tool belt for police.

What if a child was being held captive by a sexual predator and the only way to save that child was for Apple to cooperate with police?  What if was a brewing 9/11 type attack?  Where is the line in the sand that must be crossed before multi-billion dollar corporations like Apple will cooperate with judicial processes rather than risk getting blood on their hands?

From lawful public perspective, the mindset should be, “I am not committing crimes, I have nothing to fear whatsoever, so I can relax.”  Conversely, the criminal needs the anxiety that, “The police do have the tools and authorities to catch me and they will come for me”. This particularly applies to the most egregious of offences, as in the San Bernardino case.

Evolving technological obstacles are very challenging and costly for police to overcome. All police services are continually reengineering their structures, processes and activities in order to free up existing funding and personnel to deal with cyber-crime, terrorism and other emerging public safety hurdles – in an environment where rising police costs are of tremendous concern.  However these challenges alone are not insurmountable.

But combined with a lack of effective legislative tools and a privacy rights scale that has sadly tipped too far to the right, police and security agencies continue see an erosion of their ability to protect the citizens they are sworn to serve.

Chris Lewis served as Commissioner of the Ontario Provincial Police from 2010 until he retired in 2014. He can be seen regularly on CTV and CP24 giving his opinion as a public safety analyst.