As Apple’s battle against the FBI’s court order continues, and filings fly back and forth, there’s been a lot of claims about “one-time events” versus a “slippery slope.” Let’s review, shall we?
As noted when this fight began, the FBI has always (publicly) viewed this as a bite-sized chunk of access to help gain some insight into a terrorist’s mind and phone; an “important national priority.” Apple sees compromising as a bad precedent, which could give the FBI a magic key into any Apple product anywhere. And in the weeks since, the tech company has staked a victory in a similar case across the country and started engaging in some openly (and mutually) hostile briefs against the FBI. Meanwhile their claims have only grown. As more and more voices weigh in, here’s a small list of the claims an Apple loss here could mean:
- The FBI wants to roll back safeguards and open up your phone (which in the modern era is increasingly a mix of high-level professional and personal information) to criminals.
- Or, that at the very least, it creates a door for hackers to find and exploit.
- Evidence for use in a criminal trial would be challenged under the Daubert standard, which may require disclosure of Apple’s iPhone unlocking software to a number of third parties.
- If Apple pivots to the FBI’s whims to undermine the company’s encryption, other countries could (and potentially already have) request their own backdoor, no matter how authoritarian the regime.
- The FBI could force Apple to turn on phones’ cameras or microphones remotely, even bypassing a user’s preference and turning geolocation on.
Regardless of whether you agree with these outcomes, it’s not exactly like these fears are coming out of left field. As the FBI has argued for itself, this is not the first time Apple has been asked to unlock a phone—and in many instances it’s complied.
But critics see this as indication that while this may be about one iPhone in the moment, it’s never going to be wholly about unlocking just one device.
And in their defense, it’s hard to argue that when national security is given an inch it takes a mile. Just ask the NSA, who’s all set to expand the sharing of raw data that the agency intercepts with other intelligence agencies. It’s not exactly a new practice, as The Washington Post notes, but that doesn’t help the pill go down any easier:
This basically formalizes what was already happening under the radar. We’ve known for a couple of years now that the Drug Enforcement Administration and the IRS were getting information from the NSA. Because that information was obtained without a warrant, the agencies were instructed to engage in “parallel construction” when explaining to courts and defense attorneys how the information had been obtained. If you think parallel construction just sounds like a bureaucratically sterilized way of saying big stinking lie, well, you wouldn’t be alone. And it certainly isn’t the only time that that national security apparatus has let law enforcement agencies benefit from policies that are supposed to be reserved for terrorism investigations in order to get around the Fourth Amendment, then instructed those law enforcement agencies to misdirect, fudge and outright lie about how they obtained incriminating information — see the Stingray debacle. This isn’t just a few rogue agents. The lying has been a matter of policy. We’re now learning that the feds had these agreements with police agencies all over the country, affecting thousands of cases.
On the one hand, I guess it’s better that this new data-sharing policy is acknowledged in the open instead of carried out surreptitiously. On the other hand, there’s something even more ominous about the fact that they no longer feel as though they need to hide it.
Perhaps most importantly, the Post writes that extraordinary policies we grant for national security during wartime tend to end up being used everywhere else, and are rarely done away with after the war is over. Perhaps even more dishearteningly, the Congressional hearing about the San Bernardino iPhone showed that not only had FBI director James Comey reportedly not considered the broader, international implications of the case, but also that he recognized that it may have a bigger precedent within the nation as well. When asked by the committee chairman if this case could set a precedent for other requests from the FBI and law enforcement, Comey conceded, “sure, potentially.”
The FBI is right, that nobody has appointed Apple as the gatekeeper or even the definer of what “privacy” means in the 21st century. However, they might want to do a bit more as a federal agency to inspire confidence that they should be tasked with this preeminently important task.