You’ve probably noticed that a disagreement between Apple and the FBI has been getting a lot of press lately. The issue is way too complicated for me to solve here, but it is important for all of us and the issues involved are going to get more muddled as time goes on.
The simplified version of the issue is that an iPhone recovered by the FBI during a terrorist incident is “locked” and the FBI (or anyone else) can’t access the data on the phone without the proper code to unlock it. The “code” in question here is a four digit number — doesn’t sound too difficult. Just try all possible combinations until you hit it. Well, it turns out that for security reasons, the phone is designed to only allow ten (10) tries to enter the correct code. If a wrong code is entered 10 times, the phone erases all its data.
So… the FBI is asking Apple to write software to disable this “feature.” Apple, of course, is claiming that to do so would (potentially) compromise the data on everyone’s iPhones.
If Apple does create such a tool that enables government or law enforcement agencies to bypass a product’s security features, the potential for it falling into the hands of cybercriminals and hostile governments is probably pretty high. If such a tool existed, foreign intelligence agencies and criminal organizations would pay enormous sums of money for access to such a “master key.” The “thing” the FBI is asking Apple to create isn’t a “thing” at all — it’s digital data. It’s not something that can be locked in a box and put away.
One thing that makes the problem here so murky, is that it involves legal, policy and technical issues.
The FBI is choosing to use something called the All Writs Act of 1789 (rather than legislative action via Congress) to justify the expansion of its authority over Apple.
Until this FBI/Apple argument started making the news I had never heard of the All Writs Act. Turns out the All Writs Act (AWA) is a United States federal statute which authorizes the United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The act in its original form was part of the Judiciary Act of 1789.
The application of the All Writs Act requires the fulfillment of four conditions:
• The absence of alternative remedies (there is no other statute or rule that applies)
• An independent basis for jurisdiction — the act authorizes writs in aid of jurisdiction, but does not in itself create any federal subject-matter jurisdiction (it applies to a third party with some connection to the case)
• Necessary or appropriate in aid of jurisdiction — the writ must be necessary or appropriate to the particular case (it is justifiable by extraordinary circumstances)
• Usages and principles of law — the statue requires courts to issue writs “agreeable to the usages and principles of law” (compliance doesn’t create an “unreasonable burden”)
Part of Apple’s argument seems to be that if the FBI wants new powers to break security of our digital technologies, let it demand a law from Congress. If such a law is passed, it can be submitted to the courts to ensure it’s constitutional.
As I said earlier, this is way too complicated for me to solve and I continue to follow the news in an attempt to understand both sides… as of right now, I’m probably more on Apple’s side. From what I know about the situation, I think it would be very difficult to keep the information (necessarily) in a digital form bottled up. My opinion may change as both sides reveal more information.
As more and more of our lives are lived online, the Internet, computer power, social networks, etc. have pretty much laid our actions, beliefs and relationships permanently open to inspection by way of their digital traces. Personal anonymity is dead or dying. What little privacy Apple’s security provides is possibly being taken away. When Earl Warren was on the Supreme Court, he said, “The fantastic advances in the field of electronic communication constitute a greater danger to the privacy of the individual.” He probably didn’t realize how right he was at the time.
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