Taking a byte out of the FBI

This week’s question comes from Angie W. in San Francisco, who asks:

Q: “I have been reading about Apple’s decision to object to, and refuse to comply with, an FBI request to crack the iPhone that was linked to a shooter in the San Bernardino massacre. How would this affect my privacy as an iPhone owner/user?”

A: Angie, this question is one that deals with an individual’s rights to privacy.

The FBI demanded that Apple hack into the iPhone. Apple refused. In a “message to our customers,” published on Apple’s website, dated Feb. 16, 2016, Apple stated: “The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand.”

The message continues, “Smartphones, led by iPhone, have become an essential part of our lives. People use them to store an incredible amount of personal information, from our private conversations to our photos, our music, our notes, our calendars and contacts, our financial information and health data, even where we have been and where we are going. … For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.”

You see, Angie, the FBI was not asking Apple to help access information, but instead to crack its own encryption systems — systems even they don’t have a “backdoor” into. Apple stated, “When the FBI has requested data that’s in our possession, we have provided it. Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case.”

“Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation,” the company wrote. “In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession. … Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

For Apple, this is not only an issue of corporate philosophy or domestic security; China is Apple’s second-biggest market, and sales in that country were only authorized by the Chinese government after Apple had satisfied their rigorous demands concerning privacy and security of data stored on these devices. Creating a key for the FBI would then create a key for the CIA, IRS and any number of agencies that may want to break the encryption protections of any owner worldwide.

The FBI has not asked Congress to pass a law requiring companies that develop encryption systems to protect user data, instead it is trying to use the “All Writs Act” of 1789 to validate its demand. It doesn’t take a lawyer to argue that, in 1789, Congress did not predict we would have encrypted personal hand-held computers.

If Apple continues to resist the FBI’s demands, the bureau can seek to have a federal district court judge order Apple to undertake this unprecedented activity. I think it is highly unlikely a federal district court judge in California would make such an order. Whether he or she does make such an order, it is likely the matter would be appealed to the 9th Circuit Court of Appeals, which sits, as needed, in the beautiful 9th Circuit chambers at 7th and Mission.

Ultimately, the matter would likely wind up before the U.S. Supreme Court.

The FBI may also seek to have a law drafted — passed by both the House of Representatives and the Senate and be signed into law by President Barack Obama — requiring developers and manufacturers to provide the FBI, CIA, IRS and other federal agencies with the master key to our digital privacy. It is unlikely such a law would ever be passed, much less signed into law by a Democrat.

(With Donald Trump as president, who knows if he would read, much less follow, the Constitution?)

Even if such a bill was passed and signed into law, it would inevitably be challenged in the federal courts under the Fourth Amendment as being an unlawful search and seizure, invading one’s Fourth Amendment constitutional right to privacy.

Forcing Apple to create a new code very well might be argued to be a violation of the 13th Amendment, passed in 1865, outlawing indentured servitude and slavery. Most certainly, any law of this nature would eventually wind up in front of the U.S. Supreme Court, where I don’t think it would pass constitutional muster.

So, Angie, while I can’t tell you exactly what will happen, I can tell you it won’t happen for a long time to come.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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