The Other Wrinkle In the FBI vs. Apple iOS Encryption Battle

Big news today. Apple has stood up to the FBI and the court that mandated Apple to comply with the FBI’s request to decrypt (ostensibly) a single iPhone belonging to one of the San Bernardino terrorists. The discussion, as framed in Tim Cook’s letter, hinges primarily on user privacy concerns and the potential for abuse by criminals and hackers, not to mention foreign and domestic actors alike.

Should Apple develop a modified iOS version for the FBI’s use?

But we should notice a different kind of abuse afoot here…

Aside from privacy, encryption, and Cyber security considerations, we are seeing our government legally compelling a company to develop a technology without compensation. If nothing else, Apple should demand a government contract (and a healthy one) for developing a custom version of their proprietary iOS. Has the FBI released a request for proposal (a.k.a., RFP) for such an effort? How much funding has the federal government set aside for the request?

This touches on another point. Yes, the government can mandate or compel companies to develop and/or deploy specific technologies in their products. Seat belts and airbags come to mind. Arguably, they too belong in the domain of “public safety,” though not quite in the way that an investigation into a terrorist attack and who else might be conspiring to endanger the public would entail.

However, such mandated “public safety” provisions go through either a legislative or regulatory process in which voters/citizens have an indirect say. No one should feel the right to demand that a private company modify the way its product(s) work through court orders. You can sue for damages, such as in liability cases, and that might result in a company’s voluntary alteration of the product(s) in question. But forcing a company through a court order to kick out a new or modified gadget for government use spews all kinds of foul scents.

One wonders what recently deceased Justice Scalia would have to say about that…