Sunday, February 21, 2016

Apple Challenges the Federal Court Ruling That It Must Create New Unlocking Software...

Yes, Apple and the federal government are at war with each other. In case you missed it, this week a federal court ordered Apple to unlock the iPhone of one of the San Bernardino terrorists who killed 14 people, and Apple is strongly challenging that ruling. The reasons why strike at the very heart of, not only digital privacy rights (which is how many are framing it), but also what constitutional checks will there be on the power of the federal government moving forward.

The center of this controversy is not whether the court can compel Apple to unlock an iPhone to provide user data to law enforcement authorities (it's legally clear that they can with a subpoena, and Apple has already done so with all of the San Bernardino shooter's data stored on iCloud); but the real issue is whether the court can compel Apple to create new software.

It comes across as absurd that the stated legal basis for the court's ruling is the All Writs Act of 1789, which is used to require people or businesses not involved in a case to execute court orders.  I mean, come on.  Using a law from 1789 to judge a case on digital encryption and software development severely damages the ruling's credibility in the public's eye, to say the least.  One could almost feel the palpable collective eyeroll most Americans had upon hearing this.

The fact is, despite the All Writs Act of 1789, the Supreme Court has ruled that "the government cannot compel a third-party that is not involved in a crime to assist law enforcement if doing so would place 'unreasonable burdens' on it".  Forcing Apple to create brand new software seems to be just such an unreasonable burden.

Of even more direct relevance is the case Bernstein v. Department of Justice, where a college student challenged a federal law that classified strong encryption tools as a form of arms munitions, and therefore forced him to register as an arms dealer in order to publish his encryption algorithm.  In 1999, a judge ruled that the government cannot regulate cryptographic "software and related devices and technologies" because doing so would violate First Amendment protections of free speech on the grounds of prior restraint.

All of Silicon Valley as well as the hacktivist community at-large has come out in support of Apple's legal challenge.  To what extent should the government be able to force third-party companies or individuals to, not just hand over subpoenaed information, but actually be forced to create new products to assist the government in carrying out its duties?  We all want to be safe and assisting law enforcement in preventing attacks is clearly a public good.  Again, Apple has already done that by handing over all of the data on the shooter they had access to.  But a requirement to force a company to create new software (which, by the way, would be the equivalent of forcing the company to make an inferior product because it would turn all iOS products into less secure devices and, by doing so, would severely damage the company's commercial reputation)?  The line has to be drawn somewhere.



At 3:16 PM, Blogger Fitz said...

Well done, Prof Domanski. Another great explanation of a complex issue. Thank you.

At 8:40 AM, Blogger Robert J. Domanski said...

Thanks, Fitz. Long time.


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