Do iPhone-Owning Criminals Have A Right To Be Immune From A Search Warrant?
Don’t Samsung Owners’ Lives Matter?
By David Grace (www.DavidGraceAuthor.com)
Apple weighed the risk that
(1) if Apple continued its IOS 1 – IOS 7 encryption policy under which Apple itself could internally access an iPhone in response to a search warrant then someday there might be some possibility that some iPhone owners might have their emails read or credit cards accessed by a highly sophisticated criminal organization or a rogue government agency
against
(2) the harm to the public at large from unsolved kidnappings, murders, child pornography and terrorist attacks that were planned or implemented on permanently locked iPhones
and concluded that the right answer to that cost/benefit analysis was to make all iPhones totally immune to search-warrant access by law enforcement.
Was that the right answer?
To be clear, I’m not talking about whether or not the FBI has the right to force Apple to write special new code to access an iPhone (probably not) or whether or not Congress should craft new laws to deal with iPhone access (probably should). Neither of those questions are the subject of this post.
I’m only talking about whether Apple’s conclusion that its customers should have search-warrant-proof iPhones no matter how much damage those unsearchable phones may do to everyone else in America is right or wrong.
Our Rights Under The Fourth Amendment
Since the adoption of the Bill Of Rights Americans have had a constitutional right to be immune from unreasonable searches and seizures.
That has always meant that the police could not search our property without a court-ordered search warrant and further, that we had the right to challenge the validity of any search warrant in court.
There Is No Right To Be Immune To A Search Warrant
But, the Fourth Amendment to the Bill of Rights has also always meant that once a warrant is validly issued and, if challenged, upheld, that the police do have the right to search the individual’s property for the specified evidence of a crime.
Until now no one has ever seriously argued that a citizen has an innate right to exempt his records from police access via a validly issued search warrant. BTW, if the individual has encrypted his records some courts (but not all courts) have held that he can be ordered to supply the encryption key and if he fails to do so, that he can be imprisoned for contempt of court until he complies.
One of my acquaintances told me he believes that iPhone data should be immune to search-warrant access because he doesn’t want to live in a country where the government could have access to a citizen’s information.
That struck me as strange because he has always lived in a country where the government has always had access a citizen’s data via a search warrant.
What he was proposing was a change in the law that has existed since the adoption of the Bill of Rights, namely, a new rule that Americans have an innate right to own and use data that is always exempt from government access via a search warrant.
Can you imagine the FBI obtaining a warrant to search a suspect’s house for evidence of his involvement in a kidnapping and the man standing in his doorway shouting, “You can’t come in because I have an absolute right to stop the government from reading my personal records”?
Or, the FBI serves Bank of America with a warrant for access to bank records to discover if the widow of a murdered man made a payment to her ex-con boyfriend near the time of the killing and the suspects say, “No, the Bank of America can’t give them copies of our bank statements because we don’t want to live in a country where the government has access to our data”?
Bank-statement search warrant access, yes, iPhone data, no?
Telephone-call records search warrant access yes, iPhone data, no?
Medical-records search warrant access, yes, iPhone data, no?
How does that work?
Is Providing Search Warrant Access An Unfair Burden On Apple?
Apple might argue that if it could access iPhone data if served with a warrant that it would then receive hundreds of warrant requests every month and that it shouldn’t have to be inconvenienced by dealing with them.
How many warrants do Wells Fargo, Bank of America, Schwab receive every month for financial records?
How many warrants do AT&T and Verizon receive every month for phone records?
How many warrants does Walmart receive every month for copies of its video surveillance tapes?
Responding to search warrants is a cost of doing business for every business in an industrial society. Transactions leave records that are relevant to criminal investigations and it’s part of the cost of doing business that companies must respond to those warrants.
Apple’s “Gee, we don’t want to be bothered responding to warrants” is not a valid justification for deliberately designing a system where Apple cannot access the data in the first place.
Apple’s Two False Arguments In Support Of iPhone Search Warrant Immunity
Apple has made two major false, “Digital versus Analog” arguments in support of its position that all data on all iPhones should always be forever immune to search-warrant access.
1) Apple says that this is a digital situation — that either every iPhone owners’ data will be completely accessible to everyone in the world or every iPhone owners’ data will be completely inaccessible to everyone in the world.
2) Apple’s Second False “All Or Nothing” Claim is that picking one of these two choices (protect all data on all iPhones or protect no data on all iPhones) is a digital process rather than an analog, balancing test.
The First Lie — All Data Is Always Protected Or No Data Is Ever Protected
Apple’s argument that this is an “all or nothing” question would be laughed off the stage in any Junior High School debate class. It is the equivalent to the “If one man is a slave, all men are slaves” debate-class sophistry.
The Security Of Any Data Is An Analog, Not A Digital, Question
The fact is that every security system has a level of difficulty and the higher the security the fewer the people who can get past it.
You lock the door to your house. That keeps out casual thieves but a professional burglar can get in.
You get a better lock and you put bars on your windows. Again, that will keep out more burglars but a determined professional can get in.
You put in a full-blown bank/museum-grade security system. That keeps almost everyone out but maybe the Pink Panther can still get in.
If Apple creates and maintains a tool that can access the data in IOS 8 in the same way that Apple itself was able to access data on IOS 7 the odds are extremely high that essentially no one but Apple will have access to that tool. The proof of that is that Apple did have such access to all iPhones through IOS 7 and such mass hacking never happened.
Facts trump fears.
And if some extremely high-level entity did gain access (CIA, FSB, Mossad) they would:
(1) desperately seek to keep their ability to access iPhones a secret, and
(2) jealously guard the access tool they stole.
They would never, ever disseminate that tool because that would destroy the value to them of what they had stolen.
Apple’s argument that if it internally had a way to itself access iPhone data upon receipt of a search warrant that then its technology would quickly and inevitably become available to everyone in the world is, on its face, ridiculous.
The World Is Full Of Still Secret Data
There are all kinds of industrial and trade secrets in the world. The Apple IOS source code is known to Apple but not available to everyone in the world. The formula for Coca Cola is known to the Coca Cola Company but is not available to everyone in the world. The nuclear launch codes are known to the Pentagon but are not available to everyone in the world.
All the way through and including IOS 7 Apple routinely unlocked iPhones when served with a valid warrant.
The fact that the data on IOS 7 phones was not at risk puts the lie to Apple’s nonsensical argument that if Apple itself can ever get into an iPhone when presented with a warrant then it is inevitable that anyone will be able to get into all iPhones.
Apple could and did get into IOS 7 phones and the sky didn’t fall — there was no mass access to IOS 7 iPhone data.
The Second Lie — Protecting iPhone Data Is The Only Possible Answer
Making all iPhones immune to a search warrant helps some iPhone users but it also materially hurts other iPhone users and it badly endangers and damages non-iPhone-using members of the public.
Sadly, Apple apparently doesn’t care when crimes committed by iPhone owners victimize citizens who don’t own iPhones.
Contrary to Apple’s position, non-iPhone owners lives matter too.
#SamsungOwnersLivesMatter
Which choice — (1) Apple internally has an iPhone access tool or (2) Apple does not internally have an iPhone access tool, promotes the most good and causes the least harm?
Finding the answer to that question is an analog, not a digital, process.
It’s a balancing test.
Apple has tried to couch the issue in digital terms because once it admits that it’s a balancing test whether it’s better or worse for society that iPhones be immune to a search warrant, then on the facts Apple loses.
What’s The Decision Tree On That Balancing Test?
If Apple internally has such a tool what is the chance that Apple’s own security will be penetrated and someone will steal the tool?
Next, what is the chance that Apple won’t know the tool was stolen?
Next, what is the chance that Apple couldn’t modify the software to make that old tool non-operable?
Next, what percentage of iPhone users will be a real-world target of this particular super-high-level thief (CIA, FSB, etc.) who actually managed to steal the tool?
Next, what types of data and how many users will such a super-thief likely target?
Next, if that targeted data is stolen from those targeted users how likely is it that the result of that data theft will be death, major physical injury or other serious criminal events?
At the end of the day those calculations tell us that the existence of such a tool represents an extremely low risk of material harm to the vast majority of iPhone owners and no risk of material harm to the hundreds of millions of Americans who are not iPhone owners.
If Apple doesn’t have that access tool, what is the chance that the inability to obtain search-warrant access to the data on the iPhones of terrorists, kidnappers, contract killers, people hiring killers, child pornographers, human traffickers, drug cartels, etc. will result in death, major physical injury or massive monetary loss to a much larger class of people beyond just some iPhone owners?
Very high.
A small, non-violent risk to some iPhone owners on the one hand and a material life-and-death risk to everyone in society on the other.
It’s not even a close call.
Your child was kidnapped and the kidnapper sends his ransom demands via his iPhone?
“Too bad,” Apple says. “We engineered the system for the specific purpose of denying the government search-warrant access.”
Terrorists are coordinating bombing a baseball game or a subway station?
“Too bad,” Apple says. “We engineered the system for the specific purpose of denying the government search-warrant access.”
An executive is setting up a scheme to adulterate hundreds of millions of dollars of food or pharmaceuticals?
“Too bad,” Apple says. “It’s more important that we eliminate the slightest chance that iPhone owner John Smith’s emails or credit card number might be accessed by the CIA than that we are able to respond to a search warrant for the kidnapper’s or terrorist’s data.”
Really? You’re going with that?
Once Apple admits that you need to balance the possible risk and severity of harm to some iPhone users from creating the tool against the risk and severity of harm to iPhone owners and EVERYONE ELSE from not creating it, then Apple’s position is exposed as being not just unreasonable but dangerous to both iPhone users and also to everyone else as well.
More people are at serious risk here than just some iPhone owners who are worried that their emails might get hacked.
And Apple knows that, which is why Apple has chosen to cast this as a black-and-white, digital decision instead of an analog one.
Apple’s position is that the iPhone-owning kidnapper of a Samsung phone owner’s child has a paramount right to protect the security of his ransom demands against a validly issued search warrant because otherwise, someday, some other criminal or some nefarious government agency might hack an innocent iPhone owner’s text messages or steal his credit card number.
Should the owners Samsung phones be exposed to terrorist attacks and human trafficking so that the owners of iPhones can be certain that their emails won’t be hacked by the CIA?
In Apple’s view the answer is “Yes.”
Is that a responsible or reasonable position?
No.
Might Apple Be Financially Liable To Victims For A Criminal’s Use Of A Locked iPhone?
Suppose my child is kidnapped and the answer to finding her in time to save her life is in the kidnapper’s phone, but he won’t give up the passcode and the data cannot be accessed because Apple has deliberately engineered the phone to be immune to a search warrant.
The kidnapper isn’t talking and my child dies.
Can I sue Apple for choosing to build a product that contributed to my child’s death?
Before you say “No” consider:
1) Apple knows that some of its phones will be used for criminal purposes;
2) Apple advertises it phones as being immune to search warrant access, thus
making them especially attractive to criminals;
3) Apple knows that the inability of law enforcement to access data on those
phones used for criminal purposes will cost crime victims’ lives;
4) Knowing all this, Apple proceeds to advertise and sell the phone with this feature;
5) One of the main reasons my daughter’s kidnapper bought an iPhone was
because he knew it’s locked design would be useful in committing his crime;
6) If the iPhone had not been immune to search-warrant access my daughter
would still be alive.
I think there are going to be juries in this country who will find that under those circumstances Apple bears some financial responsibility for my child’s death.
Apple should be careful what it wishes for.
Two Issues In Closing
1) The Twist In The Case
The government didn’t serve Apple with a warrant. They served it with a judicial order requiring Apple to create a tool to access the phone. Apple’s position that the government cannot force it to affirmatively build something new may be correct. Apple may be right that the government cannot legally force it to build this special software.
If I were representing the United States, I would pursue a subpoena for the source code to IOS 8 so that the government could write its own tool.
Apple would then have to choose if it wanted to create the tool or if it wanted to give the FBI access to its source code so that the government could build the tool at its own expense.
2) Why Is Apple Making This Stand?
Pure speculation, but I don’t think it’s about money or marketing.
I think that some people in Apple’s executive ranks and/or on its board hold anarchist or libertarian political beliefs and that on principle they think it’s wrong for the government to ever have access to anyone’s data and that as a matter of political philosophy they are looking for a way to thwart government access to a citizen’s information under any and all circumstances.
Just my opinion.
–David Grace
www.DavidGraceAuthor.com
