The underlying circumstances surrounding the recent government requests for Apple’s help with hacking an iPhone are bringing many important societal issues into focus for what may be a far reaching determination about the right to privacy that Justice Lewis Brandeis eloquently established in a Harvard Law Review article in 1890, and in his 1928 landmark dissenting opinion as a supreme court justice in Olmstead v. United.
The current situation involves the recent San Bernardino shooting incident and the fact that the FBI has been unable to access files on the perpetrator’s iPhone. They government has requested assistance from Apple engineers to ‘hack’ the phone and when Apple refused, the government obtained a District court ruling by U.S. Magistrate Sheri Pym requiring Apple to provide the requested technical assistance.
In response, Apple CEO Tim Cook published an open letter that argues this kind of circumvention of privacy constraints and technical encryption poses a serious risk to all peoples’ privacy and that the risk to privacy far outweighs any benefit that may be gained from this one particular device being accessed.
“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor” stated Cook. “And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Cook went on to question the procedural methods being used by the FBI and raised questions about the eventualities that a government required backdoor would present for all citizens: “Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority…. Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.”
At a time when the Supreme Court has only 8 Justices, and when a 4-4 tie allows a lower court ruling to stand, the speed with which this matter gets adjudicated and the way the judicial appointment process is carried out add additional layers of complexity to one of the most complex legal issues of our time. Hopefully a Brandeis level moment of enlightenment will lead to a workable legal / technical outcome, but given the current political climate it seems we are destined to be dealing with these kinds of serious hardware and communications concerns for a long time yet to come.