The legal battle between Apple and FBI/Justice Department is shaping up to be epic. Privacy advocates and criminal defense lawyers are aligned with Apple on this issue. iPhones are a part of our lives. Smart phones hold vast stores of personal information. If Apple creates a backdoor for the FBI it’s not just the FBI who will be able to use it – so will the bad guys. Government will have the ability to get into anyone’s phone. And not just our government will have access, every government will have access. Its one thing if the FBI gets a search warrant and searches a phone. Its a whole different story if repressive governments were to use the technology against their own citizens. What about countries in which homosexual conduct is illegal? Countries in which there is no freedom of speech and where citizens can’t criticize their government? Criminals, knowing there was a back door, would have enormous incentive to hack iPhones. Criminals could blackmail people. They could steal their data. They could do nearly anything with the information.
And what about the concept of ordering Apple to create new code? Apple is a private company. The courts, the Justice Department and the FBI don’t have the legal authority to tell Apple how to spend their resources. Private companies cannot and should not be forced to do the government’s work for them. The order obtained by the FBI is unprecedented. The government should have to explain why and how it has the legal authority to order a private corporation to create code and unlock an encrypted phone. Then the government will have to explain how they plan to prevent the technology from falling into the wrong hands and being abused by the authorities. Or leaked. And we know how good the government is at protecting confidential information. Just ask Edward Snowden.
And in this case tech experts such as Tim Cook are warning that if they are forced to comply with the order it could cause far more harm than good. Cook said in a statement last week
…[the] US government has asked us for something we simply do not have, and something we consider too dangerous to create.
Lawyers for the government claim that the All Writs Act has been used in the past in similar situations. Such claims are wholly untrue. Landlords providing video footage, credit card company records and monitoring phone calls is not analogous to ordering a private company to draft new code and turn that code over to the government. The government relies on Unites States v. Fricosu 841 F.Supp.2d 1232 [D. Colorado, 2012], a case in which the defendant was ordered to provide unencrypted versions of her computers which were seized pursuant to search warrants. Fricosu is essentially a 5th Amendment case – whether or not the 5th Amendment prohibits the disclosure of records in an unencrypted manner – something the defendant already had. The issue regarding the court’s order in this case is the court is ordering Apple to create something that does not exist. There are no 5th amendment implications at issue. Fricosu is not disposative. It has no precedential value. The government is only arguing Fricosu’s relevance to avoid acknowledging they are asking for something wholly unprecedented.
The government has only described the information it seeks it opaque terms and has failed to proffer any explanation for why there is suddenly such urgency. The government’s brief notes the phone may contain information proving Farook spoke to some of the people he and his wife murdered.
The government has reason to believe that Farook used the iPhone to communicate with some of the very people whom he and Malik murdered. The phone may contain critical communications and data prior to and around the time of the shooting that, thus far: (1) has not been accessed; (2) may reside solely on the phone; and (3) cannot be accessed by any other means known to either the government or Apple.
Read the full brief here. Government’s Motion To Compel Apple Inc.
According to the government itself the information the government seeks isn’t going to be used to solve a crime nor could it be used to prevent a future crime. So why do they need the information at all?