It’s certain that the FBI, an organization with a dicey history on privacy issues, thought little about sending a request to Apple to unlock the iPhone belonging to one of the two San Bernardino shooters. After all, this wasn’t the FBI on a fishing expedition for a suspected terrorist, this was a real deal terrorist who killed Americans on American soil and the FBI wanted to access the encrypted data on their phone to help determine if the pair got assistance from anyone else.
The FBI is an organization with a history of pushing the boundaries of the law when making a criminal case, but this was not one of those times. The Feds were not using a National Security Letter of questionable constitutionality or some kind of “sneak and peak” authority cooked up in the wake of 9/11; this time they had a valid court order for the search.
So it was, to the very great surprise of both the FBI and the general public, that Apple said no and defied the court order. Not just “no” in the abstract, but hell no and turned its formidable legal team loose to fight the request in the courts and its PR department to fight the request in the media.
Privacy versus Security
For Apple, and every other electronic device maker, it’s not a simple choice. Do they make a secure device that allows potential terrorists to hide their plans from authorities, or create a backdoor that basically allows law enforcement to compel manufacturers to give up customer data? Apple claims, with some merit, that writing a backdoor for the FBI would coercively deputize electronics manufacturers as permanent extensions of the government’s forensics lab. Once such a backdoor existed, other governments, some of them in oppressive countries, would insist on access to those tools as well. At least some of those nations would use such a back door for industrial espionage as well as criminal investigations. Apple is quite correct in its contention that this request is not simply about one phone that belongs to a known terrorist.
Constitutional Questions
In recent filings, Apple claims the government’s demands would ultimately make iPhones less safe. There’s also the time and expense involved in writing the code and Apple claims the government can’t compel them to spend that money and calls the requirement unduly burdensome. Apple is quite correct that we’re not talking about a few lines of code but a major rewrite of the iPhone software that would require hundreds of hours of software engineering.
Without Precedent
Apple claims that the government is conscripting the company to assist under the very outdated All Writs Act, which allows courts to compel third parties to assist in a government search. The Supreme Court has put limits on that power over the years and the demand cannot be unreasonably burdensome. A lot of the merits of Apple’s case will depend upon what the court considers “unreasonable” and just how far the government can push compliance.
Both Apple and the FBI have turned to Congress to settle the issue but don’t look for any quick solutions there, even though this is hardly a new problem. The most we’re likely to see out of Washington is a commission to study the issue of data privacy and security which will make suggestions to update current laws…someday.
The broader question, which this case will certainly not be able to answer, is if anyone has a right to absolute secrecy from the government, even if those secrets might cause harm to the United States or its citizens? In the history of us trying to answer that question as a nation, the answer is somewhat fluid, depending upon whether we were faced with a crisis at the time. During World War II, that was an easy question for the government to answer. We locked up people of Japanese descent in internment camps, not because we had evidence of any criminal wrongdoing, but strictly because of the composition of their DNA. In the wake of 9/11 questions of privacy went right out the window, like papers fluttering down on Manhattan from the twin towers.
The public should at least give Apple some credit that it didn’t behave like the phone companies in the wake of 9/11, giving in to the government’s demand for illegal surveillance tools and then turning to Congress for protection from getting sued once they got caught. Whether you agree with them or not, Apple has decided to make this a public, stand up fight in the courts and the court of public opinion and that has to count for something.