It sounds like a simple request: The FBI would like Apple to help it un-encrypt San Bernardino terrorist Syed Rizwan Farook’s iPhone to find out information about who he and wife Tashfeen Malik collaborated with. After all, who wouldn’t want to help Uncle Sam fight terrorism? Well, Apple, that’s who; after months of negotiation with the Justice Department failed to get an agreement, the corporate giant has now ignored an Federal Court order requiring it to assist the government in getting past the Apple encryption software. While many pundits and even some Presidential candidates have barked and howled about Apple’s stance as being un-American, I suggest to you that it is not as simple as it seems. In fact, Apple’s stance could be the most American thing the company has ever done. Apple, after all, is holding $181 Billion overseas (more than any other company doing business in the US) and its various tax dodges will save it from an estimated 2015 tax bill of $59.2 Billion.
But Apple’s defiance of the court order is not about the San Bernardino case – its about what the government will do next. Apple CEO, Tim Cook, in an open letter to Apple clients, warned about the chilling effect the court order would have on privacy and security in the future. The government has not been able to get into the phone on its own and the court order requires Apple to engineer a way around its encryption security; Apple insists that such software does not currently exist and that the order amounts to a demand that Apple hack itself. But Apple’s encryption technology was developed in response to Edward Snowden’s revelations about the NSA and other government agencies spying on Americans. And Cook states he is concerned what the government may use the new technology for. He also argues that the court exceeded its power in forcing Apple to create this “backdoor” into its security measures.
The FBI did not get a warrant here because a search warrant is not enough – it can’t search the phone because it can’t get in. No current law covers this type of situation so the FBI dusted off the All Writs Act of 1789. That law allows judges to “issue all writs necessary and appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Of course, back in 1789 we were a new country and the founding fathers likely thought a “catch-all” type bill like this was a good way to cover their bases. But we live in a country today where just about everything we touch, smell and see is governed by one regulation or another. And if no law specifically allows this, then Congress should simply enact it if such a law is in fact necessary. So it should come as no surprise that the Obama administration in 2010 proposed and submitted to Congress a law requiring technology companies to provide access to the government to unencrypted information in certain cases. That law would basically bring tech companies in line with phone companies. The bill was not pushed after the Snowden information leak and it sits unpassed and unreviewed in the Senate.
There is no debate that the government can get a court order to obtain copies of text messages and other data that are saved in plain text. But their is no law that allows the government to get an order to force a company to write software or re-design its system to allow access to encrypted data. Without a law specifically defining when the government can get this access, there would be no check against unfettered government intrusion into our private information. Putting this capability into the government’s hands would damage the work Apple did to create this security firewall in the first place and could lead to abuse. And that’s Apple’s argument as set forth in their open letter:
The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.
The government smartly chose the San Bernardino case to test the limits on its power and to make Apple look like it was “aiding terrorists.” They argue that the terrorists are dead and that this is the only way to gather intelligence on who they were working with. But even were that true, we still live in a nation of laws and we should not give up all of our rights in the name of “national security.” The fix here is easy – pass the legislation proposed so that the courts have guidance and so that limits are placed on the government’s reach into our personal data. I’m no fan of Apple, not by a long shot. But they are right to take a stand here and say “Not so fast.” Congress can put a swift end to this impasse by doing their job and passing a law governing this situation. Then all sides can have a voice in the debate and we can get a law that balances the government’s need for information and our right to privacy.