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  • Apple and the U.S. Government: Talking Past Each Other

    February 23rd, 2016

    This story has lasted several news cycles, which itself is unusual. Between fretting over who the Republicans can rally behind to stop Donald Trump in that crazy Presidential campaign, there are back and forth discussions about Apple. The main issue: Whether Apple should be forced to create a backdoor that would allow the FBI to use brute force logins to break into that iPhone 5c used by a terrorist.

    The White House and the director of the FBI say no problem. Apple should be able to break into a single iPhone 5c without having to confront the possibility that there will be a master key that functions with any iPhone. Not mentioned is the troubling question of legal precedent. Once or if Apple is forced create a backdoor for the iPhone, other Federal and also State agencies may make similar requests. Governments in other countries, knowing that a backdoor existed, may demand that Apple provide it as a condition of selling their hardware in those countries.

    As I said, once the genie is freed from the bottle, that’s it for Apple. All hopes of enforcing encryption on your iPhone or iPad will be history unless Apple comes up with a security measure that even they cannot unlock. To me it all seems clear as day, but there remains a wide gulf between Apple’s statements and those of the U.S. authorities.

    I suppose Apple could decline to provide the update on those grounds, that it is not possible to create a backdoor that would function on only one iPhone and no other. But I’m not qualified to consider the legal niceties of the situation. The FBI could argue that Apple could do it because it’s, well, Apple, and it’s their operating system.

    To make it more complicated, it appears that the authorities changed the Apple ID on that iPhone after they had it in their possession. Apple says that move only made it much more difficult to get at the iPhone’s data. In other words, it was a foolish mistake, and now Apple is expected to provide the tools to unlock the iPhone as a consequence of that mistake.

    This is the sort of conflict that can drag on through the courts for a while. Even if a move was made to fast track it to the U.S. Supreme Court, the fact that it’s one justice short could be a problem, unless the remaining members managed to get five members to vote in favor of one decision or the other.

    However, if the Supreme Court ruled that Apple must comply that would be the end of it, regardless of the merits.

    Meantime the back and forth continues. The other day, Trump threatened to boycott Apple if it didn’t comply. Other critics said it was all about Apple’s ego and marketing strategy. Pretend to be fighting for the privacy rights of their customers while using it as a means to sell more gear. Some tech bloggers echoed similar sentiments, but it’s not at all clear why.

    Even Apple’s biggest rival, Google, supported the move. Apple received support from other key players in the tech industry, including Face-book and Twitter. Such civil rights organizations as the Electronic Frontier Foundation (EFF), the ACLU, and Amnesty International expressed their support.

    As to the public, a Fortune magazine online poll showed 71% in favor of Apple. But such polls are clearly unscientific. A Survey Monkey poll from USA Today had 51% supporting the FBI, but it appears a larger portion of Android users, who just may hate Apple, favored the request. I wonder how’d they react if Google or Samsung were on the receiving end of such a court order rather than Apple. A Pew Research poll yielded similar results, but the figures I saw didn’t subdivide the respondents by the smartphone platforms they used or preferred.

    At the end of the day, it’s clearly not known just what’s on that iPhone, or whether it would be actionable in any way against other potential terrorist plots. It may well be that incriminating messages would be written in someone else’s chatting software, such as Face-book’s WhatsApp, which would trigger yet another legal skirmish.

    In other words, this request is being made on a wing and a prayer with no guarantee of the results. It didn’t help that the Apple ID was changed. Somebody must be beating their head with their fists over that unfortunate decision, which Apple says really complicated the situation.

    To be fair, one cable news commentator suggested that the Feds should just hand the iPhone to Apple, let them do their thing in their own test labs, turn over the data and destroy the device and the software, so there are no copies anywhere of any backdoors. I suppose that might make sense, but it would still leave a dangerous legal precedent in place. That’s what these commentators aren’t talking about.

    I wouldn’t pretend to guess how this will all end up. Will the courts actually understand the real consequences of forcing Apple to update iOS in a way that removes brute force protections? Will they truly weigh the rights of privacy of millions of smartphone users against the possibility that unlocking a single smartphone might yield data they need, even though that’s not at all certain?

    Perhaps Apple’s suggestion is best, that a commission be formed to study the matter and come up with a set of workable solutions that are fair the government and the tech companies and, most important, to an individual’s privacy rights.



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