As iPhones become slimmer, the box that contains the electronics that make it work is tighter every day. So perhaps it should come as no surprise that the legal box on Apple and other makers of technology is getting a lot tighter, too.
The recent court order to unlock the iPhone is straight out of a TV crime drama. The suspects in the San Bernadino shooting are dead, and the only possible way we can understand their motivation is to gain access to every piece of otherwise private information on them we can. That includes their iPhone, a device encrypted in a way that no one, even the maker, can unlock. But Apple has never tried to create a “backdoor” for their own reasons, and has outlined exactly why they don’t want such a program to even exist.
But there’s much more to this than a TV show. This is real life, and security concerns have come right up against privacy in a complicated and dramatic way.
There’s no doubt that the FBI has a good reason to request the data from the iPhone of Syed Rizwan Farook – it may save lives. If he was involved with other terrorists who may be planning a more coordinated attack, they and everyone else need to know about it.
Apple, however, doesn’t want any part of this effort. It’s not just a promise to consumers that an iPhone is “uncrackable” which is at stake here, either. China and Russia have in the past demanded that phones be accessible to their authorities and Apple has stood up to them. The strongest argument they had was that no such method existed. Once that genie is out of the bottle there’s no way to put him back in.
Beyond that simple drama, easily portrayed with lingering camera shots and throbbing music in 42 minutes if someone wanted to, it gets very complicated. The law at stake is a 1789 act called the “All Writs Act” (AWA) which empowers the courts as follows:
[A federal court] may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
In other words, a court order to do something is basic law in the US. They can demand whatever is necessary to pursue justice.
This isn’t the first time the AWA has come up against privacy concerns, however. In 1977 the Supreme Court heard arguments in a critical case called United States v. New York Telephone Co. In that case, the FBI was having trouble installing taps on phones without assistance from the phone company. They obtained a court order which required the phone company to assist. New York Telephone appealed the write, and the Second Circuit court sided with them, saying,
Perhaps the most important factor weighing against the propriety of the order is that without Congressional authority, such an order could establish a most undesirable, if not dangerous and unwise, precedent for the authority of federal courts to impress unwilling aid on private third parties. We were told by counsel for the Telephone Company on the oral argument of this appeal that a principal basis for the opposition of the Telephone Company to an order compelling it to give technical aid and assistance is the danger of indiscriminate invasions of privacy. In this best of all possible worlds it is a law of nature that one thing leads to another. It is better not to take the first step.
The US Government appealed this decision to the Supreme Court, which overturned the circuit court decision and ordered New York Telephone to assist in the installation of phone taps in response to court orders. This is the precedent for ordering Apple to comply with the writ issued in this case.
Where does it go from here? The battle lines are being drawn not just in this case but across the land. California now has a bill pending that would require phone manufacturers to maintain backdoor access to their phones. For Apple, it’s gone full circle – they’re not up against Russia and China anymore, but the US as well.
Naturally, this has privacy advocates absolutely besides themselves in anger. The key difference here is that unlike a telephone, which is inherently ephemeral and does not store any old data, a smartphone stores much data and thus allows hackers access to a lot of aspects of a person’s life. The need for security is enhanced by the very functions that make a personal phone more appealing – there is an awful lot of your life on that phone, and access to it is access to your entire life.
It is very unclear where this will go. There is no doubt that Apple intends to appeal this all the way to the Supreme Court. With the death of Antonin Scalia it is difficult to say exactly where they will come down on matters like this, whether or not there is a replacement any time in the next year.
It’s the biggest legal fight of our time. Should laws from earlier times be extended into today’s technology, or does the highly personal nature of the latest devices allow for even more privacy than ever?
Apple has been standing up to authoritarian governments for years on this subject, and so far it has won. It may have met its match here in the US – one way or the other.
This post includes many links to very scholarly articles on this difficult subject. Please follow them for more information.