It’s all about security.1
On the one hand, there’s security from terrorists. Terrorists are real, and the threat is serious. But the threat of being shot by a pistol-packing Second Amendment gun nut is far higher; the threat of being killed by a drunk driver four orders of magnitude greater, and the threat of wrecking the planet through climate change greater still. The FBI doesn’t want to crack anybody’s iPhone for any of those other, greater threats. And there is absolutely no evidence that Syed Rizwan Farook’s locked iPhone has any evidence that would be useful to anybody. It’s purely a fishing expedition.
On the other hand, no one who knows anything about data security believes that a back door, built by Apple to crack Syed Farook’s iPhone, won’t be used again and again. And won’t be sniffed out by foreign governments or the malware bad guys, who are a lot more clever than the FBI. If a back door is built, the bad guys will find it and a billion iPhones will be suddenly no longer safe or secure. You won’t get that genie back into that lamp; or those worms back into the can.
Which is more likely to make us safe? Allowing the government to use an 18th Century statute – the All Writs Act – to force Apple to build a back door to all of our personal information, knowing it will exploited by other governments, crooks, malware and other bad guys?2 Or the contents of Syed Farook’s iPhone in the hands of the FBI?
Doesn’t the question kind of answer itself?
And there’s that similar case in New York, involving a drug dealer’s iPhone. The Feds want in to his iPhone, too. But the U.S. Magistrate there said, “No.”
In a world in which so many devices, not just smartphones, will be connected to the Internet of Things, the government’s theory that a licensing agreement allows it to compel the manufacturers of such products to help it surveil the products’ users will result in a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.
Digression: How is it that we are talking about regulating iPhones, which have never physically injured anyone, and not talking about regulating the firearms that the San Bernadino domestic terrorists got so easily? Which is more dangerous? Which should be receiving the attention of law enforcement? But WC has digressed.
Then there’s San Bernadino District Attorney Michael Ramos who claimed Apple must assist the FBI in unlocking the phone because an alleged security threat might have been “introduced by its product and concealed by its operating system.” He claimed that Farook’s iPhone might contain a “lying-dormant cyber pathogen.” WC has been following the computer industry since the days of the Apple II. WC had never heard of a “lying-dormant cyber pathogen.” It turns out that no one in the computer industry had either.
That’s because D.A. Ramos made it up. He lied. The government lied to help justify forcing Apple to make your cell phone data much less secure. WC hopes it doesn’t come as a shock to you that the government will lie to achieve their ends. And that the FBI will always, always put their right to information ahead of your right to privacy. In a sense, it’s their job, or at least their approach to the their job. That doesn’t make them correct. That’s doesn’t make their actions constitutional. The FBI will cheat, has cheated and will cheat again.
In fact, Apple has been cooperating with the FBI up to the point of cracking everyone’s iPhones. Apple told the FBI how to get the data on Farook’s iPhone: leave the iPhone lugged in and on, and the auto-backup feature, if enabled, would put a complete backup in Farook’s iCloud. With a proper court order, Apple could then hand over a complete backup to the FBI. But when the FBI tried it, the trick didn’t work. No backup. That’s because the FBI had gone in and changed the iCloud password. The iPhone didn’t know the new password. It’s locked, so the FBI can’t tell Farook’s iPhone the new password.
Yep, the FBI sabotaged its own investigation. Stupidly. Still want to trust the FBI with a backdoor to everyone’s data?
The hearing on Apple’s appeal from the order is March 22. WC hopes someone with some sense and perspective re-thinks the San Bernadino case. As Apple’s lawyers put it,
Finally, given the government’s boundless interpretation of the All Writs Act, it is hard to conceive of any limits on the orders the government could obtain in the future. For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.
We have precious little privacy left. We should resist letting our . . . paranoia . . . or the FBI give what’s left away.
The U.S. Government’s response to Apple’s arguments to the court amount to an extended attack on Apple, instead of addressing the issues Apple raised. In WC’s experience as a lawyer, when you have the law on your side, you pound on the law. When you have the facts on your side, you pound on the facts. When you have neither the law or the facts, you pound on the table. Or vilify your opponent, which amounts to the same thing. It speaks to the legal bankruptcy of the Feds’ position that it stoops to those tactics.
- WC is an admitted Apple Fanboy. For about 40 years now. This isn’t an Apple issue. This is a First and Fourth Amendment issue. If you think WC’s liking for Apple colors this blog post, stop reading here. ↩
- When the All Writs Act was enacted, back in 1789, Benjamin Franklin was still playing with kites in thunderstorms. That’s all we knew about electricity. Alexander Graham Bell’s telephone was 85 years in the future. Radio, computers and cell phones would have been magic. Even the late Justice Antonin Scalia’s “originalism” couldn’t stretch the law that far. ↩