The People v. Apple: Smartphone Data Must Be Subjected To Lawful Searches
Feb. 19, 2016 (Mimesis Law) — As it turned out, the 30 million people watching Geraldo Rivera open Al Capone’s vault were deeply disappointed; Geraldo found nothing of value or interest inside. But the reason it got so many eyeballs was the possibility that inside could be evidence of any number of Capone’s notorious crimes. The show encouraged viewers to let their imagination run wild. Maybe there was money inside, weapons, or even a body. The only way to find out was to open it and look inside, on live television.
If Apple had been in charge of the vault, no one—not even Geraldo—would have been allowed to look inside. Apple is currently resisting a court order related to the encrypted iPhones that the San Bernardino killers owned. If you don’t remember, this was the couple that killed 14 people, mostly co-workers, at a Christmas party.
There’s really no doubt that these two were indeed the killers, and there is additional evidence that they were inspired by a terror group to carry out the attack. You would want neither one as spokesperson for the wrongfully accused. So, it might appear curious to some that Apple would want to be remotely uncooperative in this case. The answer here is the same as many of life’s other questions—money.
Thanks to the revelations of Edward Snowden, we learned that the NSA was pulling data off the servers of nine technology companies. Certainly, the revelation was embarrassing for tech companies, but it was losing in excess of $35 billion in revenue that really mattered to them. If cooperating with the U.S. government affects your bottom line that much, you can see why some companies like Apple have suddenly found a renewed concern for their customers:
The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.
We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them.
So, you see, it’s all about the hurt that “well-meaning and law-abiding” citizens would suffer. Though maybe Apple deserves some credit now, if only a little. On the other hand, the federal agencies, whose conduct soured governmental relationships with tech companies, and the politicians who carelessly enabled those agencies, would do well to remember the proverb, ‘sow the wind, reap the whirlwind.’
But if Apple, Google, Facebook prevail, and prove themselves mightier than our government, any government, then their CEOs become our new Overlords, omnipotent kings who cannot be stopped or controlled. At the moment, they seem like benevolent kings, standing up for something with which we agree. But did you get to vote on Tim Cook ascending to the throne?
Of course, even if Apple beats back the feds, there is nothing to stop the initiation of yet another secret program with colorable legality to avoid the problem of non-cooperation in the future. Federal law enforcement has the financial means to solve most their problems by throwing money at them. The King is dead; long live the King. But thwarting search warrants at the local level is something potentially more troubling.
In theory, there is no activity so private, so secret that a judge is prohibited from authorizing law enforcement from observing it, listening to it, or seizing items related to it. Our personal privacy is not absolute, but neither is the bad guy’s privacy. In particular, wrongdoers usually aim to carry on in secret, making law enforcement intrusion often necessary to solve cases and stop future crimes. The hope is that we lose a little privacy at the margins but gain much greater security in return.
Consider the hypothetical case that upon a showing of probable cause, law enforcement is issued a search warrant for the contents of Al Capone’s safe. But Apple had built the strongest lock and safe in the world, which is the same one Capone used. Indeed, this safe is so secure that if someone tries to unsuccessfully open the safe too many times, the contents will be destroyed. To execute the search warrant, law enforcement needs Apple to turn off the Mission-Impossible style self-destruct; they will do the actual safe cracking.
That’s basically what Apple is being ordered to do regarding the phone:
In other words, the order does not tell Apple to crack the encryption when Apple does not have the key. Rather, it is asking Apple to turn off a specific feature so that the FBI can try to brute force the key — and we can still argue over whether or not it’s appropriate to force Apple to disable a key feature that is designed to protect someone’s privacy. It also raises questions about whether or not Apple can just turn off that feature or if it will have to do development work to obey the court’s order.
It is worth noting that it is possible that even with Apple’s assistance, the FBI may not be able to break the encryption without the key. And computer security legend John McAfee is pessimistic about the FBI chances, though sanguine about his own. After all, the point of strong encryption is to resist such code breaking efforts. Although the debate about whether the feds should be granted an encryption backdoor is ongoing, that consideration is beside the point here.
Local law enforcement does not have the financial and technological resources of federal law enforcement agencies. Unlike the feds, local law enforcement would often be thwarted without the ability to fully execute a search warrant of electronic data stored on smart phones or computer-type devices. Generally, your local law enforcement is running down cases like gang-affiliated groups running drugs or credit card skimming rings. With limited resources, things like 24-hour surveillance, wire taps, and undercover investigators cannot be used as work-arounds for search warrants. They would break budgets before they break cases.
Apple’s concern for the slippery slope and their bottom line is understandable and weakening security could lead to less privacy and more crimes like identity theft. But uncooperative technology companies will have real-world impacts on local communities. It’s not just terrorists who use cell phones. The ability to lawfully get data off smart phones is an important tool for law enforcement in more and more cases.
While companies like Apple stridently refusing to assist with search warrants will not, by itself, cause a great spike upward in the crime rate, it will make it more difficult to arrest and then prosecute moderately sophisticated criminals. This means their criminal enterprises will go on longer and cause more damage before they slip up, like finally nabbing Capone on tax evasion.
People certainly have privacy interests worth protecting, but people also have an interest in search warrants being executed against criminals.
Main image via Flickr/GillyBerlin.