FEATURE: Apple, the F.B.I., and the right to privacy

Feb 19, 2016, 1:18 PM EST
Source: Johan Larsson/flickr
Source: Johan Larsson/flickr

The conflict between Apple and the U.S. Federal Bureau of Investigation has garnered international attention, as well it should. Much has been written thus far detailing the facts of the issue, but the long and short of it is that the F.B.I. is using the judicial system to wrangle Apple into creating software that would enable the agency to access an iPhone that belonged to Syed Farook, one of the shooters in the December San Bernardino attack, which killed 14 people. On Tuesday, a federal court ordered Apple to comply, to which Apple CEO Tim Cook issued a letter forcefully stating the company will, in fact, not. The F.B.I. says the goal of accessing Farook's data is to discover if he was directly in contact with the Islamic State. Much of the tech world, Google included, has rallied behind Apple, reinforcing Cook’s statement that the entire world of user privacy and security will be compromised should Apple be forced to create and deliver software that allows the government to bypass the passcode entry of the phone.

As the New York Times explains, the demand from the F.B.I. "would allow the government to try an unlimited number of passwords without fear of the phone erasing all of its stored information." Supporters have praised Cook for his stalwart nature and defiance in the face of the courts and the U.S. government, while others continue shaming him and Apple for refusing to comply with an issue of national security. Cook's position is ideological in the sense that Apple is not unable to create a software that would unencrypt its initial software, but rather it is unwilling to do so. That stance is based on the belief that doing so would provide an unprecedented opening for government to demand access to user data. The other side, namely the Justice Department, federal prosecutors and law enforcement officials, says that encryption — an integral component in Apple’s iPhones — is obstructing investigations into matters of national security. Regardless of one's position or opinion, one of the main issues at the core of this conflict is the notion that privacy is a human right.

Looking back, it’s inarguable that technology has changed the way governments, companies, and consumers approach human rights. For example, it was unthinkable a decade ago that access to the internet would be considered a human right by many, and that some of the world's largest tech players would be trying to disseminate it for free around the globe. Now, Apple is maintaining that privacy itself is a human right, and no authority can come between the company, its encrypted software, and the privacy of the user. But encryption, as Blouin News has reported on in the past, is a double-edged sword. And the F.B.I., for one, is painting a picture of Apple's actions as borderline treason.

Speaking to Blouin News, Mark Grossman, a nationally-recognized technology law expert and author, said that the legal implication for technology companies, should the F.B.I. be successful in forcing Apple to unlock Farook’s phone, is a “potential Supreme Court case requiring a tech company to build software for the government to defeat the tech company’s own security.” Indeed, this is likely to go to the Supreme Court.

From a business standpoint, Grossman noted, "This will cause people to buy technology from non-American companies because they can no longer trust American companies with their confidential information if these American companies are subject to this type of court order."

While the human right to privacy is at play here, Grossman said that the angle most often overlooked in this debate is "the almost unlimited power a Federal Court has to order anybody to almost anything. And all this power comes with only vague limits like the order must be 'agreeable to the usages and principles of law,'" - a caveat, he mentioned, that comes from a 2014 case wherein the court required an unknown tech company widely believed to be Apple to assist in breaking into an iPhone. "So while it’s a 'privacy case,'" he added, "it’s also more broadly a case about the power of a court to order almost anybody to do almost anything."

It is important to note that this is not a unique case. Governments, particularly the U.S., have sought this type of back door access from technology companies for years. The difference this time is that the San Bernardino shootings struck a painful chord in the American public, and the government might have more public support than in previous cases.

Regardless of one’s position, if Apple creates the back door technology to allow the F.B.I. to access Farook’s phone, that technology will officially exist where it had not before. And the policy implications for its use could change. As Grossman said, court orders could extend to “mere business disputes or even divorce cases.” He warned: “Don’t think that this precedent will necessarily be limited to national security cases like San Bernardino.”