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Apple, the FBI and Civil Liberties

Wednesday, February 24, 2016

It is a scary day for freedom when the government can compel you to create something.

The back-and-forth between the FBI and Apple has been pretty amazing in its intensity, but also in what is being implied about the authority of our government.

It is important to note than the normal purpose of the law is to create boundaries around freedom.  We all understand why one cannot yell "fire" in a crowded theater, or drive a vehicle at 100 miles per hour on a residential street.  In this sense the law works negatively - telling us what we may not do, and what punishment will be meted out to those who disregard the law.

There are some instances where the law compels us affirmatively.  We are required, when summoned, to serve on a jury to afford our neighbor a fair trial.  If we are believed to have knowledge or evidence related to the commission of a crime, or even on a matter related to a civil case in court, we can be compelled to testify, and must do so truthfully.

But with this matter of Apple and the FBI it is very important to recognize that a line is being crossed, and how that line is being crossed.

First, what is the FBI asking of Apple?  Their "iOS" - the operating system for the iPhone - has been designed to destroy data on the phone if more than 10 unsuccessful attempts are made to provide the "key" by which its data can be "decrypted."  The intent is clear, and perfectly legal: to protect the customer's information from attempts to hack into the phone if it is lost or stolen. The FBI is demanding that Apple create what we in the IT world might call a "patch" or "hotfix" that disables the 10 attempt limit.  This will allow the FBI to use a hacking technique called "brute force."  This simply means you hook the phone up to a computer which will repeatedly try different keys until the right one is found.

I find myself - coming from a law enforcement family and generally being sympathetic toward law enforcement - rather shocked by what the FBI is claiming here.  Let's back up and ask ourselves the following questions:

Does Apple have knowledge related to the commission of a crime?  If it does, it clearly can be compelled to truthfully testify as to that knowledge.  Does Apple have evidence related to the commission of a crime?  If so, they can be compelled to turn such evidence over.  However, there is simply no way consistent with our civil liberties that the FBI can argue that Apple has such knowledge or evidence in this matter of the San Bernardino terrorists' phone.

The FBI is relying on a law called the All Writs Act, which states that the courts can issue "all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."  There are four conditions which must be present when this law is invoked, but I am not sure these even apply.  The FBI, it seems, would first have to show that compelling Apple to create something it has chosen not to create - for perfectly legitimate business reasons - is "agreeable to the usages and principles of law."

It is awfully hard to see how the FBI can do this.  If there already exists a way to circumvent the 10-attempt limit, Apple could rightly be compelled to at least employ this method to make the data on the phone available to the FBI.  But again, Apple has chosen for perfectly legal reasons not to create such a capability.

The most compelling reason is the global nature of Apple's market - and the obvious fact that Apple's products are sold in markets where no regard - at least in the American sense - for civil liberties exist.  If Apple is forced to create such a capability a reasonable person can easily infer that the capability will be subsequently ordered by these other governments, and at some point become generally available, gravely injuring Apple's business.

It seems utterly disagreeable to the usages and principles of law - and its underlying principles of civil liberties - to allow the government to compel any person to make any thing when no criminal intent can be otherwise established or inferred to that person.

Three cheers for Apple's stand for freedom.

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