Unless you’ve been living in a cave, you already know by now that a federal magistrate judge in California has issued an order to compel the technology giant to provide technical assistance to the FBI in unlocking the iPhone of one of the San Bernardino mass shooters.
(If you have been living in a cave, more bad news: Justice Scalia is dead and Kanye West is in debt.)
Apple is outraged. In “A Message to Our Customers,” it declares this “unprecedented step” a threat to “the security of our customers,” who—it piously intones—“expect Apple and other technology companies to do everything in our power to protect their personal information.” Apple has tried to be helpful to the bureau, the company contends. “But”—and here’s the big But—“now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They asked us to build a backdoor to the iPhone.” The company is promising a fight: “We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country.”
We will leave for another day the question of whether a multinational corporation with shareholders and customers worldwide and production in China, is meaningfully capable of patriotism, let alone love. In prior posts, we have offered some resources and background that might be useful to commentators and citizens looking to wrap their minds around how a 227-year old law came to be applied to an iPhone operating iOS9, what the scope of the company’s obligation to provide “technical assistance” investigators really is, and what any of this has to do with “going dark.”
In this post, however, we want to make an argument: Apple is being mischievous here, and the company’s self-presentation as crusading on behalf of the privacy of its customers is largely self-congratulatory nonsense. In reality, the case poses starkly the stakes in the “Going Dark” debate. What’s more, it was entirely predictable; indeed, one of us predicted it with some precision barely a month ago. Far from the “unprecedented” “overreach” of Apple’s rhetoric, given the uncertain state of the law and the stakes in the case in question, it would have been akin to malpractice for the FBI and Justice Department to not fully explore the scope of Apple’s obligation to help the government effectuate a warrant in a major ISIS case.
More particularly, given the company’s simultaneous opposition to any legislation to clarify industry obligations as companies implement stronger encryption systems and its insistence that current law cannot force it to help the government, we submit that Apple is really trying to carve out a zone of impunity for itself that rightly alarms the government and should alarm the very citizens the company (which calls these citizens “customers”) purports to represent. The company’s near-duplicitous posture thus highlights the urgent need for a legislative intervention spelling out who has what obligations in situations like this one, situations that will only grow more common in the coming months and years.