On Dec. 2, 2015, in San Bernadino, California, American-born, homegrown, Islamic terrorist Syed Farook and his Pakistani wife Tashfeen Malik killed 14 and wounded 22 at a holiday party organized by Farook’s employer, the county department of health. The couple used rifles purchased by their friend and neighbor Enrique Marquez. In the aftermath, they were killed during a shootout with police.
The government continues to investigate the case in order to understand Farook and Malik, to determine whether others besides Marquez were involved, and to determine whether other similar plots are afoot.
As part of that effort, it wants to access the information in Farook’s work-provided Apple iPhone. That information is encrypted and protected by a passcode and a self-destruct feature. The government asked Apple for help.
Apple CEO Tim Cook claims that Apple is standing on principle. That it is about freedom of expression. He argues that it is un-American for the government to conscript a private business to investigate one of its customers. He claims that doing so would set a dangerous precedent that would undermine everyone’s privacy and security. Forcing Apple to create a “back door” would be akin to spreading a cancer.
It’s a remarkable position for an information technology company to take, given how much it depends upon the rule of law.
According to Thompson Reuters, from 2007-2012 Apple filed more than 1,200 patents with respect to hand-held mobile radio telephone technologies used in its iPhone. Those technologies include the phone’s camera, user interface, image display (screen), battery, antenna and voice control (Siri).
Between its introduction in 2007 and 2012, Apple sold more than 250 million iPhones and made about $150 billion in revenue.
A patent is the legal right to profit from an innovation. The holder of a patent can sue someone who infringes their right. Apple has filed many infringement lawsuits and been involved in other intellectual property litigation with parties such as Google, Samsung, and Nokia. In 2012, Apple won a $1.05 billion jury verdict over Samsung for infringing Apple’s patents on technologies controlling the iPhone’s screen responses to finger-swipes, and controlling the overall look and feel of the iPhone (a matter of considerable importance to Apple founder Steve Jobs, who prized the elegant design of his devices).
Lawsuits are resolved with evidence. Evidence includes the testimony of witnesses, given under oath, subject to the penalty for perjury. That testimony originates in the minds of those witnesses. With rare exceptions, those witnesses are not entitled to withhold what they know, nor to withhold what information they possess in documentary or other format.
That’s because our legal system has a right to every person’s evidence. It’s inherent in the rule of law. Without it, there wouldn’t be any companies, much less any IT companies that profit from the legal right to intellectual property. We’d be resolving our differences with clubs in the jungle. We wouldn’t have the time for, or luxury of, smartphones.
Apple does not have a constitutional right, like the ones against self-incrimination or unreasonable search and seizure, at stake. The government is not some Apple rival seeking its trade secrets to gain a competitive advantage in the marketplace. It is trying to protect the public, investigate crimes, and enforce laws passed by our representatives in Congress.
Giving the government access to encrypted iPhone data may reduce the phone’s security, but that’s part of the price we pay to live under the rule of law.
Halsey Frank is a Portland resident, attorney and former chairman of the Republican City Committee.