Short Relief: Apple shouldn't get to pick the laws it will obey

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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 refused.

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.

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  • EABeem

    Hey, we agree on something!

  • Chew H Bird

    Encryption does not work in a “one off” scenario. While my heart tells me Apple should comply and assist the government, as an IT person I know better…

    Our entire country (and most of the world) uses encryption for secure information. Without encryption our financial, legal, and medical systems would be opened up. Creating encryption that can be bypassed is one more open door to anyone wishing to compromise private information. Encryption works because that door is closed. There is currently not a method to selectively open private doors to encryption without compromising the integrity of the entire system.

    Additionally, suppose China (or a middle eastern country) argues they should receive the same ability to open encrypted devices? Suppose an insurance company wanted to open encrypted devices? Suppose…

    And it isn’t just Apple… Next will be Google, Microsoft, and specialty encryption vendors like Symantec (for example) who create encryption algorithms for others. And what about Cisco whose routers basically transport the vast majority of online traffic and keep private networks secure?

    While I sympathize with situations where the ability to open encrypted devices would be helpful, this is a case where the damage is far greater than the good. out government has already demonstrated many times over their inability to keep personal data out of the hands of others and we want to provide them a master key? This heart tugging emotional request by our government, if granted, will by default create more instances of identity theft, stolen data, security breaches, that will greatly compromise our national security and personal privacy at the same time.

    On top of all this, I suspect iPhone sales will slump as acceptance of encryption methods as a way of securing our data. I can think of very few things worse than Apple providing our government what they want.

    • EABeem

      Nonsense. As Peter Bright writes in Ars Technica, “The court isn’t asking Apple to defeat the encryption in any way. Nor does the court require Apple to create a vulnerability that would jeopardize the security of any other phone. Rather, it’s asking Apple to do the one thing that Apple alone can do: use the iPhone’s built-in method of installing firmware written by Apple.” Apple CAN do it for just one case, but Apple is afraid their brand will suffer if consumers knew how easily compromised their data is. As if we didn’t know that already.

      • Chew H Bird

        Firmware on one phone can be hacked and modified to work on other phones. Encryption that is firmware dependent provides both hardware and software vulnerabilities. Imagine that firmware being released in the wild… Even if all Apple does is remove the self destruct capability it creates a road map of sorts for all malicious hackers to follow.

      • areyoukiddingme

        EABeem, Sometimes you can be rationale, so maybe there is hope here if you actually understand the underlying facts. Here the government is asking Apple to create a new work. It is a piece of software, cost and time to create unknown. Technically possible for sure, but otherwise a new invention. That work would defeat an existing feature of an Iphone. IT does not exist today. As a constitutional matter if you can force companies to create software under court order you can make them do anything -of any kind-. How on earth can you support that.

        • EABeem

          National security, public safety. I also have a particular dislike for Apple, which operates more like a cult than a business.

          • farmertom2

            National security? Not in this case. Looking for the location of a bomb? Maybe that’s national security. There isn’t the least shred of evidence that these weren’t just two disgruntled office seekers. Our collective phone security matters than the FBI’s collective curiousity.

          • EABeem

            And what if the shred of evidence is on that iPhone? The very definition of civilization is giving up certain freedoms for the greater good.

          • Kenneth Dunlap

            If the FBI believed that, they would disassemble the phone, yank the storage chip, stick it in a chip reader and read away. This is not about what’s on the phone, it’s about establishing a new legal precedent whereby the government can compel expressive speech.

          • farmertom2

            Hey EAB– It’s all about balance, and since 9/11 the balance has been wrong. Any time the cops/DOJ/FBI/CIA want to know something, do something, suspend rights, they just say Abracadabra (sorry, it’s “national security.”) and poof! It’s like all their cards are trump (think bridge, not imbeciles). Franklin put it bluntly and succinctly: He who sacrifices freedom for security deserves neither. In the present case, the position of Apple is a mild pushback on that dolorous thumb-on-the-scales the government has used (and abused) since 9/11. Freedom of speech is absolutely core to American’s freedom, and the limitations are, have been, and remain extremely limited. In the present case, there is not the remotest possibility that the trade off is worth it. And as a society we benefit far more from robust cyber security than we do from any possible information gleaned from a couple of murderous (and deceased) people who happen to belong to today’s ethnically suspect class. It used to be Japanese American **citizens**. Now it’s Muslims. Even the notoriously illiberal NSA boss agrees that the FBI has the weaker case here. (http://theweek.com/speedreads/606641/exnsa-cia-chief-michael-hayden-sides-apple-fbi-iphone-encryption-fight)

          • EABeem

            Benjamin Franklin wasn’t talking about people giving up their civil liberties in exchange for security. That quote comes from a letter he wrote about a dispute between the governor and the legislature of PA. It was the “essential liberty” of the government to levy taxes he was talking about. As Benjamin Wittes of the Brookings Institute explains:

            “In short, Franklin was not describing some tension between government power and individual liberty. He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade. Notwithstanding the way the quotation has come down to us, Franklin saw the liberty and security interests of Pennsylvanians as aligned.”
            I support a case-by-case approach to law enforcement access to information and this a case where I support that access.

          • farmertom2

            I am aware of the source and circumstances of the Franklin quote and believe that the point is both applicable and is not limited to the narrow circumstances which prompted it.
            Meanwhile, that’s a quibble. Forget Franklin and answer Mr NSA…. The NSA is all about *getting* information and yet he sees Apple compliance as dangerous for us all….

          • EABeem

            As the Week advises, ‘read on” if you think Super Spook Hayden is a civil libertarian. He presided over the greatest invasion of privacy in the nation’s history.

          • farmertom2

            Yes, sure. But he opposes forcing Apple to provide the backdoor to this phone. His reasoning seems sound to me.

      • Just Sayin’

        Beem, I find myself often agreeing with you, but not this case. I subject to you the following: To begin with, assuming apple was to comply. How are you so sure it’s actually feasible to contain the use of this software to this one phone? Consider that the firmware update is designed to make brute force attacks a valid way of breaking into the phone, for the express reason of accessing information on the phone… That firmware update will be part of what’s accessible, so what’s to stop the FBI from copying it and using it at their whim in the future?

        Secondly, we have ample proof that this isn’t a case of national security here. Law enforcement had the phone unlocked, as they changed the password while it was in their possession. They’ve already had access to everything on it. Furthermore, this is an iPhone 5C, a 32 bit device. As such they can still get access to the data by cloning the device and breaking into it using established methods. This would be far faster and easier than trying to drag apple to court.

        Add to that that the FBI has admitted that it has another 14 phones lined up to be broken in the same way if this is successful and we an see pretty clearly that the FBI is using the emotions of this case to try to establish the tools and legal precedent for them to destroy the last shreds of the right to privacy extending to our devices. You may not like Apple very much, Mr. Beem, but I like an paranoid and invasive government even less.

        As Benjamin Franklin famously said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

      • Just Sayin’

        Okay, reading further down the posts I see you addressed my Franklin quote already. While that is an interesting bit of learning, I don’t think we can ignore what the popular interpretation of that quote is today. It’s a message that clearly resonates with the public, as it’s one I hear quoted with some considerable regularity.

        Any system has flaws that can be turned against its people, we cannot be so quick to abandon the principles of freedom when we begin to encounter adversity. If we do, what was the point? People had to fight to secure those rights, and they won’t just be given back. People will have to fight for them again, and in my opinion, it’s our fight, and we should rise to the occasion rather than giving up our liberties and passing the buck down the line.

  • Aliyah33

    There are too many red flags in this case. Unfortunately, the majority already seem to have bought into the narrative as written in your Opinion article, Frank. We’re left with the crux of the case, and that focus is Apple’s encryption and whether the federal government should be allowed access.

    We’ve seen very little about witness accounts of the scene. Here’s an example:

    “The witness, Sally Abdelmageed, worked at Inland Medical Center where the attack took place and saw it all unfold firsthand. It’s also important to note that Abdelmageed is likely not lying and that this quite possibly might be the most accurate eyewitness account publicized to date. After all how can two shooters, a man and a petite woman, be mistaken for three white military men with athletic builds?

    In a phone interview with CBS Abdelmageed explained:

    ‘I heard shots fired and it was from you know an automatic weapon. […] very unusual. Why would we hear shots? As we looked out the window a second set of shots goes off […] and we saw a man fall to the floor. Then we just looked and we saw three men dressed in all black, military attire, with vests on they were holding assault rifles. As soon as they opened up the doors to building three […] one of them […] started to shoot into the room.’

    When asked what the gunman that shot into the room looked like the eyewitness replied:

    ‘I couldn’t see a face, he had a black hat on […] black cargo pants, the kind with the big puffy pockets on the side […] long sleeve shirt […] gloves […] huge assault rifle […] six magazines […] I just saw three dressed exactly the same’.

    ‘You are certain you saw three men,’ the newscaster asked Abdelmageed.

    ‘Yes,’ said Abdelmageed.

    ‘It looked like their skin color was white. They look like they were athletic build and they appeared to be tall.'”

    Additionally, it’s been ruled that anything put on Facebook – even so much as pressing the “like” on certain articles and links can be used against a person in the court of law. The CIA gave $500,000 as startup money for Facebook, a data-mining heaven. What could be easier than have people input their own information – willingly?

    Perhaps looking at getting Apple’s encryption was the game plan all along?

  • Just Sayin’

    You only have to look far enough to find out that the password of the phone in question was changed while in FBI hands. This COULD NOT have been done without the phone being unlocked in the first place. The feds have already scraped the data from the phone, and are drumming up nationalism and fear of terrorists as leverage to force Apple to unlock the phone, not because they need the information on it, but because they want the legal precedent to force encrypted devices to be unlocked by any means necessary.

    It’s a power grab, plain and simple.

    • Aliyah33

      From what you’ve written, if the FBI has already unlocked the phone, then it’s possible they could also place any data into it.

      • Just Sayin’

        The FBI likely had the opportunity to put any data they wanted on there, if it was important to them. The issue here on what the FBI is trying to (Fairly illegitimately) accomplish here is twofold:

        First, they want Apple to write a new OS that is stripped of some of the hacking protection on it, so that they can use brute force hacks to unlock the phone. (And, then reading from that phone they could copy that OS and reverse engineer it, potentially giving them the iphone skeleton key.)

        And, second, they want the legal precedent set that they can force people to undo encrypted/locked devices. They’re using the San Bernidino case because it’s highly emotionally charged, not because they really need access to anything on that phone.

        Moreover, the phone in question at the moment is an older model, the 5C, and that means they could simply clone the contents of the phone and hack into it with established methods. There’s literally no need for this current attempt to force Apple’s hand, and yet they keep insisting it’s neccessary and about just this one phone. Meanwhile they have over a dozen phones they’ve already admitted to planning on doing this to next if successful.

        It’s not a terrorism investigation at this point, it’s just another instance of the long ongoing attack on your right to privacy.

        • Aliyah33

          I appreciate your response and expertise in this area; hope many will read it (and what Chew H Bird has written, too) and understand what’s really at stake.

  • Kenneth Dunlap

    The government wants to force Apple to create a new work. There is strong legal precedent that code is speech. It is well established constitutional law that the government cannot compel speech.

    • farmertom2

      This is what it boils down to and if this were an exceptional circumstance, maybe all that would be worth bending. This is not an exceptional circumstance.

    • HBF

      The government compels speech every time a witness is subpoenaed to testify in court.

      • Kenneth Dunlap

        Perhaps you’ve heard of taking the 5th? Even in the relatively narrow cases where that is disallowed, the government cannot compel specific speech, which is what they’re demanding here.

        Here’s a thought experiment: Imagine the FBI is trying to crack an art forgery ring, and they decide they need a fake Van Gogh. You happen to be an expert on Van Gogh, techniques of that period, etc., and very adept at reproducing Van Gogh’s works (which of course you would never use to defraud anyone). Do you think the FBI should be able to force you to create a painting for them? If so, what is the legal justification?

        • Chew H Bird

          I suspect this case will linger on the vine until it is a non issue. Just wait long enough for new versions of iOS to contain encryption that Apple (and same for other OS manufacturers) cannot compromise (think secure key entered by the device owner to encrypt the data that is unknown to the manufacturer). Once newer versions of iOS, Android, and Microsoft are configured in this manner, the opening of old devices will not be a security threat to entities that care about security as the solution will be to buy new devices… Apple wins by selling new devices that cannot be compromised by current technology and eventually wins public opinion by unlocking old (legacy) devices at the request of the government. This will ultimately be a waiting game that will be profitable by Apple, provide the government what it wants, and allow people to control their own level of privacy.

        • HBF

          It’s pretty unlikely the phone contains information that incriminates Apple.
          In a criminal investigation with sufficient justification, the government can compel people to give handwriting, hair, blood, and saliva samples.

          • Kenneth Dunlap

            None of the above responses bear any similarity to the case at hand. None of them involve the government compelling expressive speech. Instead of listing all the irrelevant things government *can* make a person do, why not post some research on legal precedent which would back up your claim?

  • farmertom2

    A former head of the NSA disagrees. And rightly so– Weakening security is the last thing any of us needs. Furthermore, it strains credulity to suggest the government has a right to force you to make something. The government wants to look, let them look. But “make this?” Hah.
    It’s also worth noting that this is just a fishing expedition– the government isn’t looking for anything specific, they just want to look. Let them fish, but Apple doesn’t have to build them a fishing rod and bait the hook.