The US Constitution vs Technology
You’d have to be deeply off-grid to be missing the policy debate around Apple “unlocking” the San Bernardino shooter’s iPhone. The issue has all of the trappings of a serious, technology-induced stress-test of our Constitution.
In a recent Pew Research poll, 51% of respondents were in favor of Apple unlocking the phone. Unfortunately, things are not quite that simple. I wonder what the poll results would be with a more accurate question:
Do you think the Government should be able to force Apple, against its will, to make a special version of iOS that’s deliberately less secure, so the FBI can attempt to unlock the shooter’s phone?
The emphasized section captures what’s new here: this is not about Apple providing an iCloud backup (as they’ve done in other case) or using some sort of “master key”. This is about being forced, under great duress, to make a new operating system, they call GovtOS. The FBI’s requested GovtOS would, among other things, (a) allow passcodes to be guessed rapidly and (b) not self-destruct after 10 attempts, and presumably allow a brute force attack against the phone.
Legally, the government is pushing the All Writs Act of 1789 into brand new territory. Generally, this Act gives courts the power to issue orders to third-parties to assist in the administration of justice (e.g. the telephone company being required to assist in wiretapping your phone). But the Act hasn’t been used before to force someone to create new technology, as the government wants here.
Apple’s legal response is well-written, worth reading, and (I think) makes a solid and compelling argument. Though the FBI says “just this once”, Apple has properly highlighted a very dangerous precedent: if the order to develop GovtOS is lawful, what about all other inaccessible phones? What about additional GovtOS features, like surreptitiously enabling the microphone?
Also, should Apple have to compensate for government missteps? The government reset the iCloud password without consulting Apple (foreclosing any possibility of initiating a new backup). Worse, the San Bernardino County Public Health Department (who owns the phone) never enabled Apple’s Mobile Device Manager, which gives employers the ability to clear the passcode lock and disable the Erase Data feature!
Finally, Apple’s First Amendment argument is compelling. Code is speech and forcing Apple to develop GovtOS is forcing them to say something they don’t want to say.
On the government’s side, the FBI and Justice Department argue technology can’t be “above the law”. And that’s precisely where our non-technical policy makers don’t get it: technology IS above the law. Our laws will always be trumped by the laws of science, math and nature, even though an occasional legislature might believe otherwise.
Consider this thought experiment: I’ve been asked by many friends, “If Apple made it, they must be able to unlock it!” It’s actually fairly easy to build things that can only be opened in very specific circumstances without self-destructing. Anyone can build a heavy safe with critical information on tissue paper, with some highly flammable liquid. For a wrong combination, movement, or any disturbance, it dumps and ignites the liquid, destroying the tissue. Or, it could have a thumb drive poised over a vial of acid — one wrong move and data is permanently destroyed.
Should it be illegal to build that safe?
The terrorist attack was an horrific tragedy, but it doesn’t give the government powers beyond those Constitutionally granted. To quote the late Justice Scalia in a majority opinion:
There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.
The only way to have man’s laws trump Mother Nature’s laws is to outlaw technology. If the order stands, we’ve taken our first big step in that direction.
