FBI versus Apple: The privacy threat is overblown

Fourteen killed; 22 seriously injured; the presumptive plot leader, Syed Rizwan Farook, dead; the remaining contents of Farook’s county-issued cellphone inaccessible to those investigating the details of the terrorist rampage that struck the Inland Regional Center in San Bernardino on Dec. 2. These are the facts that should matter most to those assessing the reasonableness of U.S. Magistrate Judge Sheri Pym’s Feb. 16 “Order Compelling Apple, Inc. to Assist Agents in Search.”

[The FBI and Apple: It’s not just about one phone]

Unfortunately, much of the ensuing controversy has focused on extraneous issues and false assertions intended to scare the public into believing that their personal privacy is at stake — and, perhaps not incidentally, to preserve Apple’s pre-eminent position in the cellphone marketplace. Instead of arousing alarmist suspicions that Big Brother has arrived 32 years after George Orwell’s prediction, let’s look at some facts.

1. Apple Can Comply With the Court’s Order

In the final paragraph of its Feb. 17 editorial supporting Apple, the Los Angeles Times grudgingly conceded, “At least one security expert who’s worked on the iPhone says that it’s technically possible to do what the judge has ordered.” Yet, in October 2015, Apple told another judge in New York that it “would not have the ability to do what the government requests — take possession of a password-protected device from the government and extract unencrypted user data from that device for the government.” 

Apple CEO Tim Cook’s Feb. 16 “Message to Our Customers” strongly implies that the company’s earlier judicial representations were at least hyperbolic, if not duplicitous. Cook’s new party line is that “the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create.” Note carefully that Apple is no longer asserting any technical inability (a claim that may apply to models more recent than the iPhone 5C Farook was using), but rather that there are no guarantees against multiple future uses of a program which would disable the 5C’s feature that erases all phone data after 10 unsuccessful attempts to break the password.

2. The Floodgates Fallacy

The principal thrust of Cook’s message to Apple’s customers is that the barn door cannot be closed after the horse has escaped. “Once the information is known, or a way to bypass the code is revealed,” Cook wrote, “the encryption can be defeated by anyone with that knowledge.” Perhaps so. But what Cook conveniently ignores is that Apple itself controls the barn door.

Judge Pym’s order asks only for “Apple’s reasonable technical assistance” to defeat the phone’s 10-tries-and-erase feature. Her order suggests one technical means for accomplishing this goal, but clearly specifies that Apple is free to use “an alternate technological means from that recommended by the government” and can ask the court for relief if “Apple believes that compliance with this Order would be unduly burdensome.”

Moreover, nothing in Judge Pym’s order states, or even suggests, that Apple must relinquish control of the program it is being asked to create. Indeed, the order provides that such a program can be loaded on Farook’s phone “at either a government facility, or alternatively, at an Apple facility.” Thus, if the horse were to escape, it would be no one’s fault other than Apple. However, I am quite confident that Apple has all the knowledge, wherewithal and human/financial resources to prevent this from happening.

In addition, there is nothing inherently dangerous about the prospect that other crimes might be solved if the same decryption program were used on other iPhones. On Feb. 18, Manhattan District Attorney Cyrus R. Vance Jr. told a news conference that there are presently 175 Apple devices in his cybercrime lab that investigators cannot access. So long as judges are presented and act upon adequate and reliable evidence when asked to issue phone decryption warrants, prisoners will no longer be able to characterize iPhone encryption as “another gift from God,” as one New York city jail inmate reportedly did. And should Apple cater to the access demands of repressive foreign regimes, it would be because they chose to — not because they were forced to.

3. The Dead Have No Privacy Rights Over Phones They Don’t Own

Much of the discussion about “privacy rights” in the context of this high-profile dispute ignores two salient facts. First, as a matter of law, the dead have no privacy rights — whether they are criminals, criminal suspects or ordinary citizens. Just as one who is deceased can no longer bring a claim for defamation (libel or slander), so too do all personal privacy rights evaporate the instant one dies.

Second, even if Farook were able to assert a privacy interest from beyond the grave, the phone in question is the property of the San Bernardino County Department of Public Health, and the county long ago gave the Federal Bureau of Investigation permission to search it.

4. The All Writs Act Kerfuffle

Apple CEO Cook’s message castigates the federal government for “an unprecedented use” of the All Writs Act of 1789 to effect its goal of defeating the 10-tries-and-erase feature of Farook’s phone. Yet, this same law has been invoked to obtain warrants that yielded information in similar cases — including, in recent years, roughly 70 from Apple itself. The act merely provides that the government cannot require someone to undertake overly onerous actions to assist in executing a search warrant — hence, the “unreasonably burdensome” exception in Judge Pym’s order.

And if the concern is that a law dating back more than 200 years is unsuited for today’s technological age, will Apple refrain from invoking the First Amendment (ratified in 1791) whenever it claims, in this case or elsewhere, that its corporate free speech rights are imperiled?

5. An Unnecessary Public Spat

Perhaps the most unfortunate fact about this melodrama is that it took a court order based upon a judicial warrant to bring this issue to a head. Apple and the FBI could have, and should have, resolved this dispute quietly and privately, without need of any judicial intervention. 

At a Feb. 9 congressional hearing, FBI Director James Comey testified that such efforts had already been underway for “over two months.” And, on Feb. 18, The Wall Street Journal reported that “Justice Department officials had even considered filing court papers against Apple a month earlier, only to hold off in the hope of gaining more cooperation.”

At this point, it is too early to tell with certainty which party’s intransigence was the proximate cause of this impasse. However, now that Apple has engaged the services of Ted Olson, the former U.S. Solicitor General who successfully represented George W. Bush in the 2000 election litigation against Al Gore and challenged California’s anti-marriage equality Proposition 8, we can now rest assured that the public profile of this litigation will only continue to escalate.

Douglas Mirell is an attorney and a founding partner of Harder Mirell & Abrams LLP. His practice focuses on privacy rights, defamation, publicity rights, copyright, trademark and First Amendment litigation. He can be reached at dmirell@hmafirm.com.