The first thing to know about the raging battle between the U.S. Justice Department and Apple over the iPhone used by San Bernardino terrorist Syed Farook is that it has nothing to do with individual privacy.
First, the phone in question belonged to the San Bernardino Public Health Department. It had been issued to Farook as part of his job responsibilities.
Second, assuming arguendo that Farook has some sort of individual proprietorship in the phone, his First Amendment right to privacy died with him during the fatal shootout on December 2, 2015 that left him dead.
The First Amendment Center so aptly put it this way: “Your death ends your privacy interest, because you can no longer observe, feel or object to any supposed invasion of it. Death is the ultimate privacy; it gives you all you want and then some.”
Can Apple be Forced to Act in an Investigation
Historically, Apple has shown absolutely no concern for the privacy of its users when it worked to its financial interests.
The sole issue then is whether Apple can be forced to assist the FBI in its ongoing investigation into the activities of the San Bernardino shooters prior to their horrific terrorist assault that left fourteen people dead.
The fact that it is a “terrorism investigation” places a lot of public pressure on the tech giant to cooperate with law enforcement in this particular investigation.
Apple has Cooperated Before
Historically, Apple has shown absolutely no concern for the privacy of its users when it worked to its financial interests. In fact, until recently, Apple has had no problem assisting law enforcement authorities in their criminal investigations.
As the New York Times reported on February 18, 2016, “Time and again after the introduction of the iPhone nearly a decade ago, the Justice Department asked Apple for help opening a locked phone. And nearly without fail, the company agreed.”
Then last fall, according to the Times, Apple had a change of heart – it would no longer assist the government in unlocking iPhones in criminal cases. The change came in a routine drug case after federal prosecutors in Brooklyn sought a search warrant to have the company unlock a meth dealer’s iPhone.
While admitting it could unlock the phone because it was “running old, easy to unlock software,” Apple chose not to do so.
Forced to Become Agent
“We’re being forced to become an agent of law enforcement,” the company’s lawyer, Matt Zwillinger, told the court.
In a February 16, 2016 letter to Apple customers, company CEO Tim Cook explained the company’s new position:
“The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”
County Employee Executed Auto Reset
According to government papers filed in federal court, a “county information technology employee” remotely executed an “auto reset” of the password on the Farook iPhone shortly after the shootings which had “the effect of eliminating the possibility of an auto-backup.”
While the employee acted alone and without the knowledge of the FBI, we will assume that his actions were designed to retrieve data that might have assisted the authorities.
Following the Inland Regional Center shootings, the FBI recovered from a vehicle owned by Farook’s family several cell phones that Farook and his wife, Tashfeen Malik, had tried to destroy. The agency was able to retrieve some data from the phones, but soon came to believe the actions of the tech employee resetting the password on the Farook iPhone had closed the door to additional information the agency needed in its investigation.
FBI Asks for Backdoor
This prompted the FBI to ask Apple to create a “backdoor” into the Farook phone—a technology the company reportedly has.
Apple disputes this assertion. So whether Apple actually has that technology remains a subject of disagreement.
What is not in dispute is Apple’s new-found unwillingness to cooperate with the U.S. government in retrieving from its iPhones incriminating information about suspects charged with criminal wrongdoing.
Real Issue is Duty to Assist Criminal Investigations
The issue then is whether Apple has an enforceable legal duty to assist the FBI in a criminal investigation.
We agree with Apple attorney Matt Zwillinger that the company cannot be forced to become “an agent of the government.”
Historically, in this country, no one is required to assist the police in their investigations. We cannot lie to them, impede their investigations, or otherwise conceal evidence from them, but we do not have to assist them.
But the government and some federal courts do not believe this rule applies to companies.
Government Argues Apple Should be Compelled to Assist
A Central District of California U.S. Magistrate, Sherri Pym, recently made this clear in responding to a 40-page All Writs Act petition filed by the government under 28 U.S.C. § 1651 requesting that Apple be compelled to “assist law enforcement agents” in their investigation of the Farook iPhone.
Magistrate Pym ordered the company to provide “reasonable technical assistance [that] may include, but it not limited to: provide the FBI with a signed Software file, recovery bundle, and other Software Image File (“SIF”) that can be loaded onto the SUBJECT DEVICE. The SIF will load and run from Random Access Memory (“RAM”) and will not modify the iOS on the actual phone, the user data partition or system partition on the device’s flash memory. The system will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE…”
“Shall Assist”
The intent of Magistrate Pym is clear. She used mandatory language that Apple “shall assist” law enforcement in the search of Farook’s “cellular phone.”
This is not the first instance where the government has invoked the All Writs Act—an 18th century statute that compels an individual or a company to do something. As far back as the 1970s the government has used the Act to secure information from telephone providers, and in fact in 1977 the Supreme Court ruled that a federal district court has the authority the compel a telephone company to assist law enforcement in installing a “pen register”—a device used for recording calls to a particular landline telephone.
All Writs Nuclear Option
But what Magistrate Pym has done in the Apple case has elevated the All Writs Act from a mere law enforcement tool into a what Chris Soghoian, a technologist with the American Civil Liberties Union, has called a “nuclear option.”
University of California law professor Ahmed Chappour put it this way to ARS Technica:
“Here you have the government using a catch-all statute from the 18th century to compel a technology company to ‘assist’ law enforcement by designing custom software to backdoor an encrypted device. The ramification of such a precedent could be tremendous. If the government can compel Apple to provide custom software, why can’t they compel Facebook to customize analytics that predicts the criminality of their user base?”
We agree with Professor Chappour.
Slippery Slope
The government’s action against Apple creates a legal Pandora’s Box begging to be opened. The backdoor entry into the Farook iPhone will not remain a secret. It will escape the box, and all the information we have placed on our cell phones will not only be accessible but subject to abuse by both law enforcement and criminal entities.
We say keep the backdoor closed. Terrorism should not become the excuse law enforcement uses to place every private facet of our lives under government surveillance.
However, we don’t applaud Apple’s sudden “line in the sand” against assisting law enforcement. The Farook dilemma is a nightmare of its own making—a nightmare that tech giant created nearly a decade ago when it got into bed with law enforcement in assisting them in run-of-the-mill criminal investigations.
Its crisis of conscience comes a little late in the day, but we are glad that conscience came at all. The giant computing company saw the public’s ire written on the wall. “We want our private information and data to be just that, private.” Apple’s fear of losing market share was just what it needed to see the light…
What the government is now proposing, we believe, goes far beyond “assisting” law enforcement—the government and Magistrate Pym is requiring Apple to “create” and be a law enforcement tool.