Biting the Apple – What Happens when the Government Compels Tech Companies to Act
By Phil Erwin
The legal feud between the FBI and Apple, Inc. is at an impasse, and the news media have done a pretty poor job of explaining the situation.
It’s been reported that the FBI wants Apple to “unlock” the security on one terrorist’s phone only. Conservatives see this as black-and-white National Security: The information might save lives, so Apple must provide it. FOX News’ host Bill O’Reilly and his normally-brilliant guest, Charles Krauthammer, agreed repeatedly that Apple must be made to comply with the Court’s order to “unlock” that phone.
O’Reilly and Krauthammer typically know far more about the issues than most of us. But they simply don’t know enough about the technology to be making this call; and they’re not thinking through the implications of the legal precedent.
Consider:
- It’s not just one phone; there are already reports of “a dozen or more” FBI requests, and the U.S. Attorney for New York has many more.
- It’s not just one company. Whatever legal precedent is set here, all telephone providers will be subject to – including foreign corporations.
- It’s not just telephones. Any electronic devices that communicate over the internet will be eligible for scrutiny – again including foreign manufacturers.
- This is a case of government expecting, and Courts insisting, that a corporation work for the government – that it create a new product (software), or otherwise alter its own products, because the government says it must.
This is big-time legal precedent, and it bears on our national security, our privacy rights, and governmental protection of our privacy.
We should all care about this one.
Apple’s CEO, Tim Cook, announced his intention to fight what he sees as dangerous precedent all the way to the Supreme Court.
Many Silicon Valley “insiders” support Apple’s position, which is that they cannot comply without significantly weakening their product and marketability, ultimately putting the private information of millions of customers worldwide at risk.
(This may seem a stretch to those who don’t understand the technological details, but I assure you Cook’s concerns are valid. I’ve written about it in a technologically informal way here, and included a more technical discussion of the details from an iPhone security expert here.)
FBI Director, James Comey
The FBI’s Director, James Comey sees both sides. His professional self must pursue that terrorist information, but his private citizen-self feels duty-bound to protect the rights of Americans. He knows the legal issues extend to the fundamental rights of citizens to have their property, including their private thoughts, held sacrosanct from government’s purview unless there is a criminal or national security issue at stake.
Which, of course, there is in this case.
I don’t envy Comey his conundrum.
Our technological prowess has drastically outstripped not merely our existing laws, but our ability to make new laws to govern our changing technological and social landscape.
And if you believe that the government can muster the right mix of experts to “get the laws right” – let me remind you they had four years and $800 million to get ObamaCare right, and the best they could manage was to sign up six customers on Day 1.
And don’t think the legal system is any better-prepared to deal with technological advances. In a brief for the Apple case, Federal prosecutors argued that there actually was precedent for forcing Apple to write program code, because technology providers had already been required to “write some amount of code to gather information in response to subpoenas.”
In other words, the government considers “writing code to gather information,” (known in the IT world as report-writing) to be the functional equivalent of writing code to override security and change the behavior of a system (a far more difficult challenge known as system programming.)
Comparing the two activities is akin to comparing the on-the-job driving of a parking valet to that of Richard Petty or Danica Patrick.
If you don’t know the difference… O’Reilly… You don’t know enough to be a part of the conversation.
The federal prosecutors obviously don’t know the difference. Nor, likely, does the Judge who issued the order, and will rule on the merits of Apple’s response.
That is why Apple will be visiting the Supreme Court.
At stake is far more than whether the government can make a corporation “unlock” a single “locked” device. From Apple’s formal response:
“If Apple can be forced to write code… to bypass security features… what is to stop the government from demanding that Apple… turn on the microphone… activate the camera… surreptitiously record conversations… or turn on location services to track the phone’s user? Nothing.” [My emphasis]
Apple has correctly recommended that the entire question of government compelling technology companies to compromise their products should be referred to Congress for a formal public debate and legislative resolution.
Only trouble is, most members of Congress don’t understand the technological ramifications any better than does O’Reilly.
Who you gonna call?
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Phil Erwin is an author, IT administrator and registered Independent living in Newbury Park. He sometimes wishes he could support Democrat ideals, but he has a visceral hatred for Lies and Damn Lies, and is none too fond of Statistics. If his writing depresses you, he recommends you visit Chip Bok’s site for a more lighthearted perspective.
So Phil…old time friend…..what if Apple worked with the FBI, on a job by job basis, in their own labs, retrieve the information, then give only that information to the FBI? This would seem to aleviate the issues that we are both concerned about. Of course, the Apple security, would need to be strong, to be sure nobody internally releases any secrets to getting into those phones.