Apple’s Stonewalling of a Court Order is More Apple’s Image, Less Privacy
I’ve been a loyal Apple user for almost six years now, since I made the switch from my tried and trusty Blackberry to the second generation iPhone. Now, four phones, five iPads, a MacBook Air and an Apple Pencil later, and I’m essentially Apple’s target demographic – a gadget geek who is loyal to their products.
Now, I’m having second thoughts. And it’s not because the Apple Pencil was a waste of money (it was), or because other devices can do as much for less money. It’s because of their nonsensical obstruction in the San Bernardino terrorism investigation.
For those who haven’t been following the case, the Department of Justice won a court order compelling Apple to assist the Department of Justice in extracting data from the iPhone of Syed Rizwan Farook, one of the San Bernardino shooters. The FBI hopes that data on the phone can help them in their investigation of Farook and Malik’s shooting, whether they were assisted by overseas terrorists groups, or in contact with other cells here in the U.S.
In a letter to customers like me, Apple CEO Tim Cook outlined their reasons for resisting the Court’s order, and none of them are compelling. It’s clear that this is less about taking a stand for privacy and more about Apple’s image.
After the revelations from Edward Snowden that a number of tech companies, including Apple (although Apple denies it), took part in the National Security Agency’s PRISM program, which was roundly criticized for its civil liberties implications, it’s not surprising that Apple would make a public display of taking a tougher stand against cooperation with the government when it appears privacy is at stake. It’s also not surprising they would be reticent to cooperate after the well-publicized issues with their iCloud service that, while likely the result of user error, resulted in the release of a lot of private photographs of Hollywood’s most photographed stars. Both issues gave Apple a black eye.
So it makes sense that they would want to take a stand, and their public image does impact their bottom line so it’s not completely self-serving. But this isn’t the issue to be taking a stand on.
The biggest privacy concern – and it has been one since the founding of the Republic – is the government using pressure to get access to information it has no business gaining access to, like the private papers of an individual not suspected of having committed a crime. The 4th Amendment and the litany of rules that have been put in place by the Courts to ensure privacy protections exist to strike the unique balance between personal privacy and collective security. The lynchpin of that system is the use of warrants, signed by a judge and issued only on probable cause.
The government, in effect, has to ask a non-partial, uninfluenced third party for permission, which will only be granted if they meet the legal standard. At least, that’s how it’s supposed to work on paper. It doesn’t always, and the FBI and DOJ like to cut corners, as Snowden’s revelations demonstrated.
But that’s not the case here.
Apple is protesting their being compelled to help DOJ investigate the San Bernardino murders. Here, there’s no privacy concern for the owner of the iPhone, because he’s dead. There’s no question he was guilty and committed the crimes. There’s exigent circumstances, because it’s important to know if this was a lone wolf cell or part of a larger network, and as the months tick by, whatever useful information is available on the phone will grow more and more stale. And – the most important part here – the government followed the rules and got a court order.
Apple is stonewalling compliance with a lawful, valid court order. Why?
The government did exactly what it’s supposed to do under the law – asked for help, it was refused, so they went to court to get an order to compel Apple to assist. It was granted.
So why is Apple still fighting? There are no principles or precedents at stake anymore. There is a clear public need for the data, the government followed the rules, and a court issued the order compelling Apple to cooperate. At this point, Apple has all of the cover it needs to explain why it is cooperating to customers like me. The families of the victims are siding with the government here, too. If Apple’s public relations guys can’t explain why they’re helping the government with all this, they should get new public relations guys.
With no court order, I would have agreed with Apple and applauded their fighting back. With a Court order, I’m starting to wonder why I’m still supporting a company that doesn’t respect the rule of law and cares more about the data security of a dead terrorist than it does about stopping future attacks.
Apple’s arguments against assisting the government are thin. They claim they’ve never unlocked a phone before (well, any phone running iOS 9 or above), but that’s not what DOJ is asking them to do – they simply want the feature that erases phone data after 10 password attempts to be disabled. DOJ has the tools to brute force the password from there. They claim this would set a precedent, but so what if it does? There are few, if any, legitimate privacy concerns involved in this case, and given the high profile nature, it’s very easy for anybody to argue that this is a special situation. They argue that creating this tool could allow it to end up in the hands of hackers or cybercriminals, which is one of the saddest arguments they could put out. If Apple’s employees are so untrustworthy or Apple’s systems so hackable that this kind of a tool is likely to end up in the hands of the wrong people, why is anybody putting their private data in Apple’s control? Hell, if the iPhone encryption is this good, why not just put the program on an encrypted iPhone?
Apple’s stand for privacy rights would be laudable if this was a different case, DOJ was trying to compel their cooperation without a court order, or there was a significant risk that their cooperation would have major implications for privacy rights nationally. None of that is true here.
Most of the concerns the general public has with data security and the government are gone as soon as a court gets involved. At that point, due process and the requirements of the 4th Amendment have been met, and there’s no real reason for Apple or anyone else to dig in their heels.
While I’m not yet willing to join Donald Trump’s boycott of Apple products (which, of course, he suggested while using an Apple product), their continued obstruction in this case is likely to give me, and others like me, pause before we whip out our phones to buy another Apple product.
