Nevada Press Association The best in Nevada journalism since 1924
(Updated to add CIA director’s comments, clarifications.)
Why shouldn’t Apple simply be a “good corporate citizen,” as some police and politicians have suggested, and crack an iPhone in the investigation of the San Bernadino massacre?
It could. But it doesn’t have to. And there’s the rub.
What the FBI is seeking, and the judge ordered in her writ, compels Apple to create something that does not now exist — an operating system capable of overriding its own fail-safe security features.
Use of the All Writs Act of 1789 in such broad strokes has clear implications for the First Amendment and other guarantees in the Bill of Rights.
Could a judge compel a newspaper to publish a story as a means of exposing a terrorist plot or catching a criminal?
The newspaper could choose to cooperate — at the expense of its future credibility — just as Apple could choose to write security-breaking software for its phone.
But it is clearly the company’s decision, and Apple has rightly questioned the order. It doesn’t matter that the Justice Department calls Apple’s reasoning a matter of “marketing strategy.” The company’s motive doesn’t matter.
Still, it’s an odd argument from Justice. If your product is built on a promise to customers — it’s unbreakable, or it’s accurate — and police can force you to break that promise, it has serious consequences.
In the Washington Post story, New York Police Department Commissioner William J. Bratton is quoted in a statement saying:
“No device, no car, and no apartment should be beyond the reach of a court ordered search warrant.”
But this iPhone is comparable to a building rigged to explode if anyone but the owner enters. Can a judge order the contractor who built it to come up with a way inside?
Bratton’s comment is accurate as far as it goes, but it doesn’t answer the question: To what degree is a judge able to compel a private citizen or company to assist police in accomplishing something they cannot do on their own? I submit the judge’s authority is limited, and that the history of the All Writs Act proves it.
I also wonder whether Bratton means literally what he said — no device, no car, no apartment is beyond the reach of any court in the world?
This morning, CIA Director John Brennan echoed similar sentiments in an interview with NPR, comparing the iPhone to a safe-deposit box.
“What would people say if a bank had a safe-deposit box, or a storage company had a storage bin, that individuals could use and access and store things, but the government was not going to be able to have any access to those environments? And so criminals, terrorists, whatever, could use it.”
Isn’t that exactly what a Swiss bank account is about?
The CIA and FBI aren’t interested in courts and law beyond our shores. But Apple sells phones worldwide. Would the FBI argue that a court order in China, Israel, Brazil, France, Canada or any other country also would compel Apple to provide them with the backdoor keys?
