It’s no secret I have a great interest in the technology industry, especially when it comes to the topic of Apple. I also have a great interest in history and politics, hence the name and topic of this blog. So when the situation with Apple and the FBI came to a head last week, I knew I had to write about it. In case you’ve been living under a rock, the FBI is attempting to force Apple to help them break into the iPhone of a San Bernadino terrorist. Apple is currently refusing to comply with the order, claiming the FBI’s specific request would jeopardize the safety of their customers’ data and set a bad precedent for the ability of government to force technology companies to compromise the security of their own products.
There are strong opinions on both sides. There are people who believe in strong privacy rights and applaud Apple for standing up against what they perceive as government overreach. The other side can’t understand why anyone would want to prevent law enforcement from investigating a terrorist. Both sides make good points at certain times, which makes the situation far from black and white. This is why I took my time in crafting this article so I could study all the points involved and give a well-reasoned and through examination. So strap on your seat belts because you are about to go on a wild ride through the topics of technology and politics!
The Issues Are Conflated
There has been a long-running debate in techno-political circles regarding strong encryption technology and law enforcement. Simply put, modern encryption technology like that used by Apple and other smartphone manufacturers work so well that no one is able to crack it – not even law enforcement agencies of the federal government nor the manufacturers themselves. Obviously law enforcement wants to be able to decrypt data from technology devices that are part of criminal investigations. Government officials are suggesting that technology companies should create “backdoors” into their products so that law enforcement can decrypt their products. They are also threatening to create regulations that will force them to do so if they do not comply voluntarily. It is against this backdrop that the current predicament with Apple and the FBI is taking place.
However, this situation with Apple, the FBI, and the iPhone of the San Bernadino terrorist is NOT the same as the above debate. In this instance, the FBI is not attempting to force Apple to create or use an encryption technology with a backdoor. Even if they were, it could not help them in this particular scenario because the iPhone in question is already encrypted with virtually unbreakable technology. Rather, what the FBI is asking of Apple is to create a modified operating system that would remove safeguards against brute-force password attacks for this particular iPhone. The FBI claims that if Apple were to comply, they could crack the password on the iPhone and decrypt the data without a backdoor.
Apple contends that complying with this order would require compromising the security precautions they have built into their products. They claim that by doing so they would put at great risk the privacy and security of the data of all their customers. They are calling what the FBI is requesting a “backdoor.” However, while Apple is technically correct in describing the FBI order as exploiting a backdoor, it is NOT the same type of encryption backdoor that has been the subject of much debate that I described above. The FBI has responded that they are not asking for a backdoor to encryption (in which they are technically correct), but rather just a one-time way to crack a password on one particular iPhone.
Let me be clear. I wholeheartedly believe that the idea of government enforcing encryption backdoors is a terrible idea and additionally they have no authority to mandate this. However, in this case the backdoor already seems to exist. The FBI claims they have discovered a way to work around the passcode protections on an iPhone and Apple’s response seems to have confirmed that this exploit would work. Apple is not fighting a battle on the front of encryption technologies in this instance. It is an entirely, albeit related, confrontation here.
It is clear that Apple is waging a larger war. Apple has been very steadfast on the encryption technology debate, staunchly rebuffing government suggestions for backdoors and even calling out the Obama administration for not taking a stand on the side of privacy rights. Perhaps that is why they are conflating the issues at hand. Maybe they believe that these issues are similar enough and they should just combine them for public debate. I can not blame them for taking this tactic. To some degree, the idea that government can force a technology company to exploit a security hole in their own product is related to the idea that government can force a technology company to purposely create backdoors into their products. But at the same time, I feel that Apple is possibly doing a disservice to the cause in the way they are approaching this fight.
Law vs Opinion
There are two battles being fought. One is playing out in an actual courtroom. The other is being wrangled in the court of public opinion. Certainly in a society with a government of the people, public opinion is extremely important. With the support of enough people, government can be compelled to take or not take certain actions. However, there is danger in popular democracy. Just because a majority of people believe in a certain way does not mean they are right. The opinion of the people can also be swayed by those with power and influence. Additionally, the perception of popular opinion can be skewed to fit a narrative. This is all especially true when dealing with complex technical topics, given that most people will base their opinions upon only brief soundbites.
Apple is taking a great risk by conflating the larger encryption debate with the San Bernadino iPhone issue. It is entirely possible that the situation plays out against Apple in either the courts of law or of public opinion. If that happens, it could have negative ramifications for protecting strong encryption technologies in general. The problem is that currently Apple’s main argument seems to be in the realm of the theoretical. They are saying that the FBI’s actions could have serious ramifications. It could set a very bad precedent. However, there is nothing clear-cut that would immediately happen if Apple is forced to comply with the FBI’s court order.
It is easy for naysayers to dismiss a theoretical argument when there is a real-world situation at hand. I fear it will be all too easy for those on the side of the FBI to wrap their messaging around the tragedy that took place in San Bernadino and sway the courts as well as popular sentiment. Once they have this momentum on their side, it could create new support (or at least the perception of it) for restricting the type of encryption technologies companies like Apple can use. If the FBI gets their way, it would be a simple task for proponents of encryption backdoors to argue that the San Bernadino situation is an example of why law enforcement needs an easy way to decrypt anyone’s device. If I can imagine this scenario, it is certain that political strategists have already played out this chess game in their minds.
While I don’t mind Apple bringing the issues at hand to the public’s attention, I believe that Apple should also be taking a stronger approach. An approach based in law that is not bound to the whim of popular opinion or that of politicians. If they were to do this, Apple has a great opportunity to strike at the root of not only the encryption debate, but also possibly tackle much broader issues impacting privacy and freedom as well.
Should Not vs May Not
It’s one thing to point out why the government should not do something, as Apple’s strategy seems to be so far. However, it is entirely more powerful to point out that government is not allowed to do something based on constitutional law. It’s the difference between a philosophical discussion and a mathematical equation. The first is open to interpretation while the second is based on hard and fast rules that simply can not be broken. People may not agree on the meaning of life, but 1+1 always equals 2.
If one believes that any law passed by a majority vote in a legislature is valid, then theoretical arguments rule the day. Politicians can rationalize almost any argument in their favor and they certainly have. For example, if legislators can argue that a farmer growing wheat on their own land for their own use should be considered interstate commerce AND they can get the Supreme Court to agree with them, then politicians can rationalize just about anything. While this scenario may sound like fantasy, it is sadly a very real case that was decided in 1942 (Wickard v. Filburn).
Political power knows no bounds. In the United States, the only thing standing in the way of unbridled government action are the limits upon it defined in the Constitution. Politicians can not make the case they are going to break constitutional law in order to accomplish something. Obviously that would not fly with the public. This is why they will go through mental gymnastics to try to fit something under their authority as they did in Wickard v. Filburn. Astute readers will point out that politicians have been very successful at rationalizing/ignoring laws for a long time and I definitely agree. The problem is that there have been too few situations where a defendant has challenged the government to prove their authority. While Wickard v Filburn was decided in favor of unfettered government, more recently United States v. Lopez in 1995 was the first significant decision since 1942 that ruled government had overstepped its bounds. So there is still some glimmer of constitutional limits upon government power that exist and I think Apple has an incredible opportunity to make history if they are willing to go full bore against government overreach in this situation.
How Apple Could Make Legal History
If Apple truly wants to close the door on government attempting to control the use of strong encryption, as well as other related government infringements on privacy and intrusions into personal technology, they need to force the government’s hand. They need to make the federal government explain where they claim to derive the authority to force a private company to comply with the type of request they have made of Apple. Going further, Apple could challenge the idea that government may simply pass a law that would require technology companies to comply with these types of orders including the creation of encryption backdoors. So how could Apple accomplish this?
To start, we must understand how the FBI is currently attempting to force Apple to comply with their order. The FBI has cited a law called the All Writs Act of 1789 as their justification to force Apple into compliance. Yes, this law was written in 1789, the first year of George Washington’s presidency. If there were any other law on the books that the FBI could have cited that would have more specifically forced Apple to comply, they would have used it. But there is not, which is why the FBI must fall back to using the All Writs Act. Here is the entire text:
28 U.S. Code § 1651 – Writs
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, § 90, 63 Stat. 102.)
A “writ” is basically a legal order. The All Writs Act of 1789 states that federal courts may issue all writs necessary or appropriate, which is a fairly broad statement. However, it then says that those writs must be agreeable to the usages and principles of law. Ok, so federal courts may issue legal orders but those orders must be lawful themselves. How do we know if a writ is lawful? Well, we could consult with an attorney to comb through volume after volume of federal codes to find if certain writs fall within the authority of the courts … OR we could consult for ourselves the supreme law of the land to see if the federal government has any jurisdiction to begin with. The great thing about the US Constitution is that it was written in plain language so anyone can read and understand it. Since the founders intended this to be a government of the people, they didn’t want it to be a government that only lawyers could understand.
The fundamental question is does the federal government, or more specifically a federal court, have the authority to force a company like Apple to create a method to break into one of its products? A lot of people think that this particular court order is a very simple warrant like most warrants, which allow law enforcement to search a particular place. As I’ve explained already, this case is nowhere near that simple. The FBI already has possession of the phone in question and the phone technically belongs to the employer the terrorist worked for, which has already given permission for the phone to be searched. Also, Apple does not have in their possession any of the data currently on the phone. In fact, Apple has already provided the FBI copies of old backups from this iPhone that were stored on their iCloud servers. Apple claims they had already complied with every legal request from the FBI to this point. What this particular court order asks Apple to do is create a modified version of the iPhone operating system that would work to effectively bypass some security features.
So can a judge of a federal court make such an order? The judicial power of the United States is defined entirely in Article III of the Constitution, which itself is comprised of just three short sections. Section 1 merely defines that the judicial power shall be vested in one supreme court and inferior courts as Congress may establish. Skipping to Section 3, it only defines the crime of treason and that congress can declare the punishment for treason within a few limitations. The meat of the judicial power is contained within Section 2 of Article III and all it really says is where judicial power extends. Part of Section 2 says that this power extends to all cases arising under the Constitution and the laws of the United States, which is sufficient enough for discussion of this particular situation. The real question is does the Constitution and/or any other law of the United States cover this particular situation? If laws do not apply, then the courts should have no authority.
Does United States law cover the Apple and FBI situation? Obviously a crime has been committed and the FBI has taken jurisdiction, investigating the San Bernadino murders as an act of foreign terrorism. If the federal government has the authority to investigate and prosecute terrorism, that power applies to the subjects of the investigation. But Apple is not a subject of this investigation. Other than the data they had in their possession that they’ve already turned over, Apple has no involvement in this case. They are simply the manufacturer of a product that was possessed by a criminal. We don’t even know if the phone was used to communicate with anyone involved in the crime or if there is any data on the phone that would be useful in the investigation. For most intents and purposes, Apple is an independent third party to this investigation. It is one thing for an independent party to offer to help law enforcement or to help when requested. It is another thing entirely for a third party to be forced into servitude of the government, especially when that servitude stands to materially harm that party.
As I said above, the FBI has no option other than to use the All Writs Act of 1789. Because they are using such an old law that is quite vague in its definition, we must fall back onto more foundational law, so once again we consult the United States Constitution. The way the federal government works (at least, the way it is supposed to work), all legal authority must flow from the Constitution, as it is the supreme law of the land. The Constitution lays out some very specific limited powers vested in the legislative body of the federal government, as defined in Article I, Section 8. If one were to read the short text of that section, one would not find any specific legal authority related to this situation. Nowhere does it say that congress has the power to pass laws forcing companies to help the government in a criminal investigation. Obviously it does not say anything about computerized technology, given that this document was written in the late 18th century. However, just because something did not exist in the 1700’s, does not mean the government automatically gets authority over it when it comes into existence. We the people must grant the government any authority before it can legally exercise power. So it would appear from a cursory review of the Constitution that the federal government would not have authority to force Apple to comply with its request at this time, nor would they even have the authority to pass a law requiring such things in the future. But this situation can’t be so simple, could it?
Earlier I brought up Wickard v. Filburn as an example of the type of rationalization government can use to justify their jurisdiction over an area of law. This was not a random example. I brought it up because it will likely be very relevant as this situation plays itself out over time. The federal government has become quite astute at using the “interstate commerce clause” as justification for nearly any and every law passed in the last 80 years that can in any slight way be shown to somehow involve “commerce.” The government’s go-to play would be to cite the Commerce Clause as the root of their power to regulate Apple and the technology industry, given that they obviously are involved in interstate commerce. So now it seems like a slam-dunk case for the federal government, right? Not so fast. Finally we have arrived at the crux of the situation and why Apple has a chance to make history.
Apple vs The Commerce Clause
As United States v. Lopez showed, the Supreme Court seems willing to roll back some of the authority the federal government has claimed under the interstate commerce clause. This case was decided in 1995, which was at the dawn of the Internet going mainstream. In 2016 and beyond, Apple could certainly use the power of the Internet to shine light on the absurd Wickard v. Filburn ruling. Apple actually has a chance to take this case to the Supreme Court and have Wickard v. Filburn overturned! This is no small matter! In my opinion, it would rank up there with Brown v. Board of Education of Topeka which overturned the earlier Plessy v. Ferguson decision of “separate but equal.” The impact that case had on civil rights could be the same type of impact that overturning Wickard v. Filburn could have on privacy rights in this country. It would significantly hamper the ability of the federal government to arbitrarily infringe on our rights by strong-arming the companies that make our technology products, making it a major victory for privacy rights and freedom.
Now let’s be clear, Apple may have no interest in taking on the Herculean challenge of overturning Wickard v. Filburn. It would certainly be no easy road to travel. Apple would make a lot of enemies among those who benefit from establishment politics, which is to say they would piss off a lot of very powerful people. This may not be something Apple wants to tackle, being that they are not in the business of government reform. It may not exactly be profitable for Apple to take on the full force of the federal government.
However, that being said, there may be no one in a better position to overturn Wickard v. Filburn than Apple. They have several things going for them that together could create just the right circumstances for this historic turn of events. First, Apple has a lot of cash – a ridiculous amount of cash. This is usually the primary requirement for mounting a legal challenge against the federal government. Second, Apple is an extremely popular company. The public is not likely to stand by idly if the federal government tries to bully Apple in their quest to protect our privacy rights. No one wants to see a company as iconically American as Apple get taken down by the federal government. Thirdly, the privacy rights that Apple would be fighting for also seem to be extremely popular among the general public and especially among the Internet-connected younger demographics. Public support could definitely sway the political winds as it has done a few times in the Internet/social media era.
Even with some potential advantages, Apple has to want to fight this fight. They have every practical reason not to push the federal government that far, settling for a smaller victory along the way. But I think they just might be driven enough to eventually take on the misapplication of the Commerce Clause if the federal government continues to try to regulate the technology industry. While most may think of Apple as a technology company, those of us who have studied Apple know that Apple’s mission has always been to change the world. Steve Jobs did not want to start a business just to sell products, he wanted to make products that were going to transform society. It just so happened that technology was the avenue he saw to make that happen. Yes, Steve Jobs is gone, but his legacy is instilled in the corporate culture of Apple. Based on what I’ve seen from Tim Cook, his intensity in fighting this battle is a bit out of character for him. Perhaps he has found a cause worth publicly fighting for. This may be Tim Cook’s chance to change the world and leave a lasting legacy. It’s now up to him and Apple to make that choice.