Are You Too Secure?

Are You Too Secure?

Should Terrorists Be?

A court order requiring Apple amounts to an “unprecedented” stretch of an antiquated law — one that is about to spark an epic fight pitting privacy against national security, legal scholars said Thursday. That being… to create a way to help law enforcement get access to a terrorist’s smartphone.

A federal judge in New York last fall unsealed portions of a case revealing that Apple had turned over information to law enforcement about 70 times in recent years, according to the government, based on court orders citing an obscure 1789 law called the All Writs Act. This act allowed courts to issue orders if other judicial tools were unavailable.

This week’s court order was different from those issued in the past as it requires Apple to create new software, experts said, not provide technology already at hand. In essence forcing Apple to make a new software that doesn’t exist in order to violate its own program of making something that was designed to be inaccessible.

“This is a new frontier,” said Jennifer Granick, director of civil liberties at Stanford Law School’s Center for Internet and Society. “I know of no other statutory provision that would arguably create an obligation for device manufacturers to help out the government.”

Apple may not have fought orders in the past because “it was easy for Apple to give the data,” she said. “But the architecture of the phones changed. This is about Apple creating a new forensic version of its software to do the job the FBI wants it to do.”

Apple has hired attorneys Ted Olson and Theodore J. Boutrous Jr. They are expected to argue the order violates constitutional provisions as well as the All Writs Act and would create bad public policy.

Law enforcement has relied on a 1977 Supreme Court ruling that said the All Writs Act could be used to compel New York Telephone Co. to provide technology to enable investigators to track calls being made in a gambling operation. The phone company was a heavily regulated public utility and already had the technology, however technology has certainly changed since then and key differences from the Apple case, experts said.

UC Irvine School of Law Dean Erwin Chemerinsky said a carefully drafted federal law giving law enforcement the right to get around encryption in certain compelling situations probably would be constitutional. But he doubted a court could force a company to write software. “You can’t subpoena or get a warrant for something that doesn’t exist.”

The case, which will be heard in the magistrate’s courtroom next month, would then go before a federal district judge. If appealed, the case will be heard by the U.S. 9th Circuit Court of Appeals and possibly the U.S. Supreme Court.

Although the case could be fast-tracked, Chemerinsky said the Supreme Court probably would not want to hear one that poses such novel issues without a hearing by an appeals court. “Context is everything,” he said. “I don’t think the courts have the authority to tell someone to write software, but if the reason is to prevent a dirty bomb from exploding tomorrow, the context would matter a lot.”

David O’Brien, senior researcher at the Berkman Center for Internet and Society at Harvard University, said Apple is likely to argue that the government’s demand would place an unreasonable burden on the company. But the government can counter that public safety is at stake.

In the New York case, U.S. District Magistrate Judge James Orenstein hesitated at ordering Apple to unlock a customer’s smartphone. He wanted to know first whether the assistance sought by the government was technically feasible and whether the proposed order would be unduly burdensome.

Apple had the technology at that time to give the government, but the criminal defendant in the case later confessed and opened his phone for investigators. In today’s newest iPhone models, they are not capable of being unlocked and therefore a new software would be required to be created to accomplish the goal.

We’re in a situation where public safety is balanced with personal privacy AND… a company’s right to preserve its advantage over competitors. People (including terrorists) buy the new iPhone because their privacy is assured and customers know that the government can’t access emails, texts, location and other private information.