FBI v. Apple: Is Apple Bigger Than the U.S.?

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By James A. Kidney

Apple’s fight with the United States government over access to the cellphone secrets of a home-grown terrorist who killed 14 people in last December’s attack in San Bernardino, CA, raises a fascinating cornucopia of issues, not least of which is whether, as some predict, the business of business around the world will trump even governments trying to protect their citizens.

The New York Times iPad app leads this morning with a tech columnist making just that prediction:  Apple and its digital communication colleagues will ultimately prevail against government “intrusion” because their worldwide businesses – and their customers – will demand it.

A magistrate judge Wednesday ordered Apple to create software code which will permit the FBI’s computers (not Apple’s) to run millions of password possibilities through the domestic terrorists cellphone to unlock the phone and observe whether the terrorist had communications with ISIS or others in connection with his barbarous actions.  Without Apple’s assistance, the phone will erase all information after only 10 password attempts.  It is that feature which the FBI is asking Apple to remove.

Apple is refusing.  Apple’s position is that obeying the magistrate’s order would subject it to repeated demands for defeating the software privacy protection from every jurisdiction around the world for purposes far less admirable than fighting domestic terror.

Privacy advocates for the most part will favor Apple.  Those of us with less vested interests should be very scared if what The Times columnist and others predict will come true and private manufacturers are able to defeat legitimate law enforcement by wearing a mantle of privacy virtue to protect nothing more than business profits.

Ironies abound in this case.  Not long ago, privacy advocates were angrily – and properly – demanding that national security and law enforcement organizations dump their collections of phone and internet data that swept in the private information of millions of citizens.  “A specific warrant to should be required to obtain this based on probable cause,” was the cry then.

Well, guess what?  The goal posts seem to have been moved. The FBI sought to enforce a warrant, admittedly using a 200 year old law, to force Apple to do nothing more than remove a privacy protection device from a single phone.  You want probable cause?  How about 14 bodies of innocent employees at a service agency for the disabled?

Not good enough, says Apple.  We have to protect privacy – the First Amendment and all.

This patriotic mantra is coming from the same company that stores most of its profits in Ireland and other tax havens to keep it from being taxed by its home country, the United States.  This is the company that leads the nation in exporting manufacturing jobs to China, using companies that are well known to exploit their low-paid workers, most of whom are housed in dormitories with minimal amenities.  Nets had to be hung from outside these dorms to catch workers so depressed by their circumstances they would fling themselves to death from their dorm windows.

Poor Apple.  If it were to let the FBI access a thug’s cellphone, it might have to do so in Iran, or China, or Syria, whose governments would use the data for more nefarious purposes.  Of course, Apple could refuse such demands by authoritarian or terrorist regimes.  But those countries might retaliate by banning the iPhone. Apple might actually lose business!  The horror!

According to The Times columnist, while Apple might lose the instant appeal involving San Bernardino, digital communications companies will ultimately prevail in maintaining data secrecy from even the most benign governments because, well, the right to make money will prevail over any notions of justice.

It is a sad commentary on the state of our country and the world that his notions are not dismissed as outlandish, but instead land in a prestige spot in The New York Times.

For the U.S., the best solution would be for Congress to legislate a statute authorizing law enforcement agencies to obtain a warrant under the usual probable cause standard to require Apple, Google and others involved in protecting digital data to remove any code preventing access to a particularized piece of digital equipment.  We should not be relying on ancient provisions for modern applications.

Oh, wait.  I forgot.  Congress doesn’t actually do anything.  I guess we will have to rely on the old laws.  One of those is that citizens have to abide by court orders.  Another, recognized perhaps in the breach more often than not, is that responsible citizens of the United States should work to keep the nation safe, both from crime and terrorism.  That applies to corporations.  See a Supreme Court case called Citizens United, which said corporations are people, too (except when it comes to paying taxes, I guess).

 

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