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Why Lawyers Need to Stand By Apple
Apple is in the news for the unprecedented order issued by a Federal Magistrate Judge in California this week. The order compels Apple to assist the government in hacking into a terrorist’s phone. Apple publicly refuses to comply, and every one of us ought to be standing by Apple and supporting its decision. What Apple is being asked to do will ultimately undermine every individual’s civil liberties and quite likely put national security at risk.
The order goes beyond requiring Apple to “assist law enforcement.” Read it in full and its far-reaching implications become clear. Apple is being ordered to create new technology, something that does not at this time exist, to undermine its privacy-protecting encryption. In other words, it is being ordered to create a master key to hack any iPhone on the planet.
Such an order is well beyond the scope of reason, and what the court is demanding Apple to do will ultimately undermine any hope of any of us ever having any privacy in the digital age.
This is not an exaggeration.
Remember that after September 11, it seemed like a good idea to go after terrorists by any means necessary, including listening to their phone calls, intruding on their privacy in any way necessary to stop them. Why should terrorists have any right to privacy? But when that idea was applied in reality, none of us retained our privacy. Edward Snowden’s revelations opened our eyes to the fact that we had given up all of our own protections in the name of fighting terrorism.
What Apple is being asked to do is not just to provide law enforcement with information helpful to understanding December’s terror attack and preventing others. Standing alone, that sounds like an honorable request. In reality, Apple is being asked to take its solid encryption product, a product on which millions of iPhone users rely (whether they realize it or not) to protect their privacy, and undo it. Apple is being asked to create technology to undermine the very encryption that currently protects us from government intrusion.
It is easy to oversimply this situation and rationalize that this order only pertains to one specific phone, and no one wants to stand up and argue that this terrorist’s privacy rights should not be violated. In fact, this particular terrorist was not even using his own phone, but rather one owned by his employer, so he really could not have expected any privacy on the phone. So, why not go ahead and have Apple break the encryption on this one phone?
That might be a reasonable argument if what Apple was being required to do was break the four digit lock code on this particular person’s phone – something Apple already has the means to do, and it is akin to a landlord providing a key to a rented apartment.
That’s just not the case here. The court did not order Apple to turn over the front door key that it already has; it ordered Apple to create a key to a door that currently has no keyhole. It ordered Apple to make something new to undermine the lock we all have in place. As Apple said in its public statement that it would defy this order, “The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices.”
Apple is absolutely correct. Once it creates the tool to break the encryption of any iPhone, that tool will be used again and again. At some point, it will become commonplace and accepted. None of us will expect that our phones are secure from government intrusion. Start down this slippery slope, and never again will we believe in any form of digital privacy.
Finally, if this order stands, what is next? As Apple notes in its statement, who is to say that the government would not next order it to “build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge”? There is no assurance whatsoever that cracking the door open will not make it swing right off its hinges.
Gaining access to this one terrorist’s secrets is simply not worth the massive downside. There is always information law enforcement cannot get to, and while the digital age has made it harder to hide our secrets, requiring Apple to unlock the contents of this phone is another step toward unraveling the fabric of the American system. Every lawyer should be standing by Apple and supporting its decision to defy this order.
Featured image: “encryption” from Shutterstock.
Why Lawyers Need to Stand By Apple was originally published on Lawyerist.com.
Source: https://lawyerist.com/102016/why-lawyers-need-to-stand-by-apple/
