Posted by Kevin on March 2, 2016.
A court has ordered Apple to unlock the iPhone used by the San Bernadino terrorist, Syed Rizwan Farook. Apple has so far declined to do this, and is appealing the decision – an appeal it seems willing to take all the way to the Supreme Court. The media has responded: this is Apple Vs FBI.
Meanwhile, in an ostensibly similar case in New York, a different court has said Apple is not required to unlock an iPhone used by suspected drug dealer Jun Feng. Many are saying that this second case bodes well for Apple’s Bernadino appeal. We’ll see.
The FBI has been attempting to get the courts to accept that if Congress hasn’t specified that it cannot do something, it can do it. In both cases it has claimed that the All Writs Act (which grants federal courts the power to issue “necessary or appropriate” writs) includes the right of access to an iPhone because Congress didn’t exclude the right of access to an iPhone.
The judge disagreed, suggesting that such an interpretation could “thoroughly undermine fundamental principles of the Constitution” (namely the separation of powers between the legislature and the judiciary). Employing the concept of ‘originalism’ (that is, that the judiciary should be mindful of what Congress intended at the time of an Act), he rejected the FBI argument. The All Writs Act, incidentally, predates the iPhone by more than two centuries.
However, I am not sure that this judgment will have any bearing on the San Bernadino case. While Jun Feng owns his iPhone and has not approved FBI access, the Farook iPhone is actually owned by his employer, the San Bernadino County Health Department – who has approved access by FBI. For the courts to side with Apple, they would have to dismiss the wishes of the owner of the iPhone.
My own opinion is that if the FBI continues to insist, the courts will force Apple to comply over the San Bernadino iPhone. I also suspect that Apple knows this and is milking the PR value of apparently defending its users’ privacy for all it is worth. Consider this comment from a DoJ spokesperson (reported in the Guardian, 29 February 2016):
As our prior court filings make clear, Apple expressly agreed to assist the government in accessing the data on this iPhone – as it had many times before in similar circumstances – and only changed course when the government’s application for assistance was made public by the court.
Apple is no philanthropist. Its products are overpriced. Its environmental and employment record in China is suspect. Its cash mountain is obscene. But it is a very successful business that is very good at PR and marketing. I suspect that’s all this is: a rather cynical PR exercise.Submitted in: Expert Views, Kevin Townsend's opinions |