Would you want the government to be able to commandeer information from your secure iPhone? Or would you want the manufacturer to protect the information on your phone, even after you were deceased?
You’d probably prefer the latter. Some things are just nobody’s business. We are already taped, recorded and observed beyond belief. Alone in our homes we aren’t even protected from camera drones. Privacy has become a dwindling privilege.
Let me ask you this, though. What if it were your child, or spouse, or sibling that was killed, and that information may lead to the prevention of other senseless mass murders? What if that information would help investigators learn more about how that horrible crime happened, and if anyone facilitated that crime, and others?
Would that change your mind?
I don’t want to be harsh. To be blunt, I’ve been on both sides of this problem. I’ve had entitled government employees rummage through my life like it was a yard sale. That said, I’ve also been prevented from easily obtaining my own phone usage information to provide evidence of incidents like harassment and stalking.
Before I launch into my own opinion, I’d like to offer up some detail I found when researching this post. It definitely influenced my perspective.
Facts of the case:
What is at issue, from the articles I’ve read, is data from a phone used, but not owned, by Sayad Rizwan Farook, who was one of the killers in the San Bernardino shooting.
Who’s phone is it?
Interestingly, the phone in question did not belong to Farook at all, in the sense it was his personal property, according to CNBC. The iPhone is, in fact, property of the San Bernardina County Department of Public Health, a government agency, also the target of the attack. This agency has agreed to let investigators access the phone.
In short, Apple is refusing to let the government have access to information on government property.
Typically, when an entity provides an employee with equipment, the employee contract states that the item and all information contained is property of the entity, not the individual. Many employers retain the right, in the employment contract, to access that device at will. It stands to reason, then, that had Farook survived, his employment contract would mandate that he surrender that phone and the password information to access it.
One interesting note: Farook, who did not own the phone, had disabled Cloud backup six weeks prior to the San Bernardino massacre, according to the New York Times. Some states have strict data and record retention policies, even for electronic data. Even private organizations must adhere to these policies so that they comply with regular audit regulations to maintain certifications. Farook may have been in violation of such policies when disabling the backup.
Once could also argue that because the phone belonged to a government agency, funded by tax dollars, that the phone is property of the public, as well as the data, and therefore is in service to the public at all times, even in crime investigations.
Secondly, it is not simply a Department of Justice request that Apple is defying; this is a court order issued by a judge. This means that a judge vetted the request for compliance with the law before issuing the order.
The action that the FBI is requesting, according to Reuters, is that Apple disable passcode protections. The New York Times reports that “the Justice Department wants to force Apple to write software that would allow the government to try millions of random password combinations.”
There may be an argument for expense in terms of developing software to ensure compliance, but apparently the DOJ doesn’t buy it.
Apple and the Department of Justice: Bad Blood
On April 11, 2012, the department filed a civil antitrust lawsuit in the U.S. District Court for the Southern District of New York against Apple
This current conflict is not the first dust-up between these two organizations. According to the same Reuters article, this may be another incarnation of a conflict that arose in 2014, when Apple announced “strong encryptions,” and the government had concerns.
However, that doesn’t make the 2016 controversy at hand round two, even. There’s more.
According to a 2013 Justice Department public statement,
On April 11, 2012, the department filed a civil antitrust lawsuit in the U.S. District Court for the Southern District of New York against Apple, Hachette, HarperCollins, Macmillan, Penguin and Simon & Schuster, for conspiring to end e-book retailers’ freedom to compete on price …
The Department then sought sanctions against Apple, “following the July 10, 2013, U.S. District Court for the Southern District of New York decision finding that Apple conspired to fix the prices of e-books in the United States.”
These sanctions were:
- a five-year restriction on Apple from “entering new e-book distribution contracts which would restrain Apple from competing on price”
- during that time Apple could not be “a conduit of information among the conspiring publishers or from retaliating against publishers.”
- a ban on Apple from “entering into agreements with suppliers of e-books, music, movies, television shows or other content that are likely to increase the prices at which Apple’s competitor retailers may sell that content.” (Unclear if it’s during that five years or permanent.)
I don’t personally know the people involved in making these decisions. I cannot say with certainty that executives at Apple may have a bitter taste in their mouth left from the trial and the Department of Justice’s proposed sanctions.
I do know people in government who definitely would and do seize on the earliest opportunity for retaliation, and I’m sure that those same kinds of people exist high up in the corporate world as well.
Articles I’ve read go into a lot of the posturing and finger-pointing that is going on between the government and Apple: an ID change during one attempt to access the phone that may have created some problems, etc.
Ideology versus practicality:
We live in a world where we all want certainty; we want broad, rigid rules that we can use to guide our actions flawlessly. Apple has taken a broad ideological stance: we will not assist in accessing data. Period.
One has to ask: who is being served by that position, besides Apple itself?
In our modern culture’s obsession with formulaic-driven decision-making, we may end up causing more damage in refusing to take the time to consider deeply the issues we face. There are undoubtedly countless circumstances under which Apple’s stance would be the fair, just and morally obvious choice. This is not one of those times.
It’s one thing to protect privacy, without a doubt. However, after taking a deeper look into this, I’m getting the impression not of Apple protecting data, but hiding it.
Secondly, Apple has placed its own agenda against the owner of the device, and the information. When seen from this view, Apple is not the pillar of civil rights it claims to be, but actually a usurper of individual (the organization) will.
There are some unintended consequences to Apple’s stance that aren’t being discussed. The failure to address of those possibilities bothers me. It’s easy to discuss the idea of government getting into our private data, but the facts undermine that position; Farook didn’t own the phone, he probably didn’t own the information on it, and he probably had to sign a contract acknowledging such.
The fact that the owner of the phone, the Department of Public Health (employees of which were victims and targets), also Apple’s customer, has agreed to allow authorities access, and that should have been the end of it. That Apple refuses to respect that agreement really bothers me. It tells me that the public welfare may not be most prominent in Tim Cook’s conscience when he makes ideological and sweeping statements such as calling the judge’s order a “dangerous precedent that threatens everyone’s civil liberties.” Do the victims, the survivors and their families also have a right, a civil liberty to justice?
The New York Times reasoned that Apple’s motivation may be “because the business company’s business model encourages” such a stance. Indeed, one has to ask how their brand and consumer base would have reacted if they’d quietly complied. Other sources have explored the possibility and claims that compliance with the order would cost Apple undue expense or resources, which the DOJ says are untrue.
As I mentioned earlier, I’ve tried to obtain my own data with my cell phone provider, which is not Apple. It was impossible. Apple’s stance puts a prohibitive price tag on the search for justice, and even then, sets itself above the needs of its own customers for justice by defying court orders.
The legal decisions they are seeking through their motions would make it impossible for your or me to access data on our phones if we wanted to show threats to our lives, stalking, fraud, etc. Most individuals do not have the resources to mount the aggressive opposition that the Department of Justice and the FBI have put forth.
Most Important Law of Unintended Consequences:
As this drama plays out on an abstract level for most of us, it has a real impact on the victims’ families and survivors of San Bernardino. At every mention in the press, at every news feed, they relive their horror all over again.
They can’t just not turn on the news; they have a right and need to follow the election and keep abreast of their local news. Maybe they could stay off of social media, but that may be the only access to beloved family members and friends they have.
Apple is prolonging their wait for closure and justice, and reopening horrible wounds by making their opposition to investigators so public. I wonder what the self-congratulatory emails and press releases CEO Tim Cook sends would look like if he thought about that.
Latest Motion by DOJ:
NY Times: http://www.nytimes.com/interactive/2016/02/19/business/document-motion-to-compel-apple-compliance.html?_r=0