Initial Legal Victory for Apple Against FBI on Encryption

The FBI is currently engaged in a very public legal battle with Apple over encryption. As we discussed recently, the FBI wants Apple to build a program that will allow the FBI to hack into an iPhone. Apple refused the initial request and so the FBI is trying to convince a judge to force them to do so. The main case in question involves the phone of one of the deceased suspects in the San Bernardino terror attack. In other words, it's a case where the defendant in question is about the least sympathetic character imaginable to the American public--and of course, this was not a coincidence. The threat of terrorism is the best, if not the only, chance the FBI has to get Apple to create what amounts to a special backdoor to their product for the government.

The government initially claimed that this was an isolated incident and that it was not trying to establish a broader precedent. It was quickly discovered, however, that they were trying to force Apple to play a similar role in several other cases around the country--using the same legal justification as used for the San Bernardino case.

This week, one of those other cases was decided, and it was decided squarely in favor of Apple. The judge's ruling is very thoughtful and offers a thorough rebuke to the government's position on virtually every count. Here were a few of the important points made in the ruling:

• The key issue at stake was whether the government had the right compel a service from a private individual or company that was not involved in any alleged wrongdoing. The judge concluded the government had no such authority.
• The FBI was deliberately trying to get new powers through the court's because it wouldn't be able actually get a law passed by the Congress
• Related, The FBI clearly was trying to establish a precedent despite claiming otherwise.
• Complying with the request would be a massive liability for Apple's brand that it could not be adequately compensated for.
• The government argued that Apple had a duty to assist in the investigation because it was a US company that benefited from the existence of and services provided by the US government. The judge rightly mocked this argument, noting it could be used to justify virtually any burden on private citizens or companies.

It's easy to get bogged down in the weeds when it comes to a technical discussion on encryption. But in reality, the most important questions here are not technological in nature. No one seems to dispute that Apple could assist in this case. And it's actually not that relevant whether Apple's assistance would create a major security vulnerability in their other devices (though most experts, and Apple itself, claim that it certainly would).

There are really two key issues here: coercion and privacy.

On the question of coercion, the judge hit the nail on the head. If a suspected criminal had a safe in his house and the FBI got a warrant to search it, the FBI could lawfully try to break into said safe. But the FBI could not coerce a random locksmith or the safe's manufacturer into helping them break it. They could ask for assistance, and the manufacturer or locksmith could willingly provide it. But there can be no justification for forcing them to do so. To believe otherwise is to believe that conscription is okay, and it would lead to outcomes that are "impermissibly absurd" in the words of the ruling.

In this case, Apple is the same as the safe manufacturer. It cannot acquire responsibilities because one of its millions of customers happened to commit a crime it had nothing to do with.

The question of privacy is just as important. In the context of this debate, the FBI recently claimed that Apple and others were effectively creating "warrantproof" devices--the idea being that encryption is basically preventing the FBI from doing its job. (Given that most "terrorists" the FBI catches these days it also created with informants originally, I'm definitely open to the argument that the FBI is not doing its job.) But encryption isn't the problem. And the fact that the FBI (or law enforcement generally) isn't able to access every piece of information available in a case, is not a new or unique problem.

To prove this, consider what an investigation must have entailed before the advent of smart phones. In that environment, most communication would have taken place through written correspondence, phone calls, or in person. It's true that written correspondence would have been accessible to the law enforcement agencies of yore, but how many criminals would be dumb enough to commit illicit (and therefore unenforceable) plans and contracts to writing? And even if they did so for convenient communication, how likely is it they would keep a record of overtly incriminating evidence close at hand? I'm going to suggest it's not too likely, for anyone with the slightest intelligence.

So most of the communication must have taken place through phone calls and in-person conversations. The only record of those communications would be the other people involved, which law enforcement would be able interrogate and subpoena to get the necessary evidence in the case. That was their only option then. And it remains an option today.

Clearly, it could be useful from the FBI's perspective to have the power to search a smart phone, which contains much more detailed information and communication than has ever been available before. But even without this ability, they likely already have access to vastly more information about their suspects than was ever possible in the past, through detailed phone records, social media, credit card transactions, and so on.

So the idea that they cannot possibly do their job because of encryption is deeply unpersuasive. It suggests that they are either a) overtly lying for political purposes or b) deeply incompetent compared to their predecessors. Either way, it's not clear how conscripting private companies or banning encryption is likely to solve the underlying problem.

For more on this story and the details of the judge's excellent ruling, check out this article at The Intercept from Glenn Greenwald and Jenna McLaughlin:

Apple Wins Major Court Victory in a Case Similar to San Bernardino