Earlier this week, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple Inc. to provide “reasonable technical assistance” to the FBI in unlocking the iPhone 5c used by the deceased San Bernardino gunman. Apple is fighting back, and you and your company should care about what happens next.
This fight is not about the privacy rights of a potential terrorist or a deceased gunman. We are all outraged by the events in San Bernardino and want the FBI to follow all leads and fight terrorism vigorously. But, to what end? This showdown between Apple and the Department of Justice (DOJ) could define limits to our civil rights for generations to come. This is an issue with far-reaching implications well beyond a single phone, a single case, or even Apple itself.
The Order “compelling” Apple to provide “technical assistance” is an Order requested by the DOJ to force Apple to create intellectual property (special software) that it does not possess in order to circumvent the phone’s security controls. Apple is not being asked to provide company secrets it already has – Apple has already provided the information it had in its possession. Instead, the FBI wants Apple to create a new version of the operating system designed with a backdoor to allow the FBI access to a locked phone.
It begs the question: should our government be forcing private companies to create intellectual property or products for government use? If they government is successful, will tech companies be willing to operate in the United States knowing they could be forced to create new programs any time the FBI claims it has no other choice? And what happens if the analyst tasked to work on this program fails and the phone is erased? Does the DOJ come after the company or the individual for obstruction of justice?
The mechanism used and the approach taken by the DOJ is unprecedented and deliberate. In this instance, the government argues that it does not have alternative means to access the phone. But is that true? Why force Apple? The FBI and the DOJ have a budget. Why not hire a company/individual for this task? The reason: precedent. The FBI and the DOJ deliberately sought an order compelling Apple to create a product. The bigger issue is that the FBI and the DOJ do not want companies like Apple creating encryption programs that they cannot access. They want precedent far more than they need the evidence. Of course, the government argues that access to this phone could provide crucial evidence about the attackers’ communications and contacts before the shooting. But, it may not.
Legal precedent doesn’t happen overnight. The DOJ is playing the long game, starting by deliberately choosing possibly the highest-profile domestic terrorism case in a decade to push the issue. A win here builds precedent slowly over time until it becomes near unstoppable.If the DOJ wins this fight, it could give law enforcement authority to compel technology companies to do almost anything conceivable in the name of a purported investigation or surveillance of a target. That seems to go well beyond what the Constitution and existing law permits law enforcement to do.