Security of data
Posted by: Chris G on 20 February 2016
So Apple is refusing to develop software to allow the US authorities to hack in to a dead terrorist's iphone. This probably hampers the fight against terrorism and is potentially a risk to security. Is Apple right to take this position? Apple prides itself on its stance for the rights of the individual, but itself doubtless gets much information from Apple users' activities.
Hook posted:Apple will fight this order all the way to the Supreme Court. It isn't a question of what's right or wrong, or of security versus privacy. It is instead based on a question of legal authority.
The Justice Department is asking a judge to order Apple to unlock a criminal defendant’s passcode-protected iPhone. The government seized the phone and clearly has the legal authority to search the phone pursuant to a search warrant. But the Justice department is also trying to compel Apple to do this work for them, and they are citing a 227 year old "catch all" law as the legal basis. Even the judge in this case has expressed doubt that the All Writs Act of 1789 (AWA) does, in fact, authorize him to issue such an order.
Two things come to mind: first, and rather obviously, the law lags far behind today's modern technologies. We have that here on the forum with digital music ownership rights, and it is equally true in mobile phone data privacy rights. Second, even if Apple were to create an iOS with no limits on guessing the unlock password, it would not address the issue of widespread use of data encryption by criminals and terrorists worldwide. They are often using application-embedded encryption that, even if one could easily unlock their iPhones, would still remain invisible. Also, these applications are often created in countries where criminal prosecution is nearly impossible.
I am generally sympathetic to any nation's need for security. I rely on my country's intelligence services to try and thwart as many crimes and terrorist plots as possible. I recognize that there are limits to my privacy in our digitally connected, mobile and social word. But I also think we need, as individual countries, to establish laws which clearly establish limits to how intrusive our governments can be in the pursuit of security goals. IMO, the biggest mistake in this Apple versus FBI case is that it is being conducted in the public eye. I want to believe that Apple could have hacked this one iPhone while also protecting the intellectual property that allowed them to do so. Once this case went public, it became a matter of principle. And when the court order was issued under the AWA, Apple clearly felt a moral obligation to challenge it in the courts. IMO, it is far past time for the do-nothing US Congress to begin bringing our 18th century laws into the modern age. But in a year of Presidential politics, that is simply not going to happen.
ATB.
Hook
That's interesting, Hook. The idea of trying to rely on legislation that is over 200 years old seems a long shot to me. In the UK when courts are asked to rely on legislation that doesn't explicitly fit the circumstances of the case, they sometimes explore what was in the legislators' minds when the law was passed. In the UK that would include explanatory memoranda published alongside the draft legislation and the written account of any debate in Parliament which might shed further light on the intent behind the piece of legislation. I suspect the lawyers representing the Justice Dept will have something of struggle to persuade a court that the legislators of this particular piece of legislation intended that it be applied to smart-phone technology. That might be entertaining to watch though. 
Mike
