For the past several months, the FBI and technology giant Apple have been embroiled in a public dispute over an iPhone used in the 2015 San Bernardino terrorist attack. While the conflict may be making news, there is nothing particularly new about it according to Jeff Nielsen, a licensed attorney and an Associate Professor/Lecturer, here at the David Eccles School of Business.
In Nielsen’s view, the recent dispute between Apple and the FBI is just the latest manifestation of the age-old conflict between privacy and security. As part of a timeless narrative, there are no right or wrong answers to the important questions raised in this very public debate.
Rather, an individual’s stance on this particular case is generally a reflection of what type of society that person believes that we should have. More importantly, the manner in which this case is resolved could shape the society that we will live in moving forward.
While interpretations vary widely, the facts in the case are relatively clear. In the aftermath of the San Bernardino terrorist attack in 2015, San Bernardino County obtained the work phone of Sayed Farook, one of the deceased attackers. The phone, an iPhone 5C, was locked using iOS 8’s standard passcode locking system. By design, the phone only allows a would-be user to enter an incorrect passcode 10 times before rendering the phone’s content permanently inaccessible.
For obvious reasons, the FBI would like access to this phone but is unable to circumvent this locking mechanism. As a result, the agency is attempting to compel Apple to open the phone on its behalf. While Apple has been very cooperative in the investigation, the tech giant maintains that it should not be forced to unlock the iPhone. Apple’s first line of defense is an appeal to the fact that they do not currently have the capability to bypass the passcode locking system and would need to develop it.
In order to understand the battle, it is important to understand what it is not. “First of all,” Nielsen explains, “there is no Fourth Amendment question here. This is not a question of whether or not there is a warrant. There is nobody fighting the legal authority of the government to get into this phone…the question is, can the government force a third party, that’s to say Apple, to do work on the government’s behalf for this investigation. That’s somewhat unusual.”
The FBI is attempting to have the courts compel Apple under the authority of an old and seldom-used law called the All Writs Act of 1789. The law says that a court can order anyone to do anything that is pursuant to other things the court can order.
However, the law cannot order actions that are unduly burdensome on the party it is being applied against, in this case Apple. “On the letter of the law and on the precedent”, Nielsen suggests, “the FBI has got a good argument here. But, that doesn’t mean that it’s right.”
Apple, according to Nielsen, does not dispute the FBI’s legal authority to hack into the phone. It simply disputes the agency’s authority to force Apple to hack into the phone on its behalf. Many believe that appealing to a seldom-used law from 1789 is an inelegant way to compel a cutting-edge software company to hack into modern software. “Technologies of the past had different kinds of Pandora’s box problems than technologies of today,” Nielsen argues. Once this software is developed, in other words, where will we draw the line? The potential for abuse of the desired technology, either by a hacker or by our own government is immense. These problems never existed when the All Writs Act was passed.
Aside from the clumsiness of the approach, Apple maintains that the request is unduly burdensome. As explained by Nielsen, Apple would be paid to develop the software to break into iPhones, but the damage to its reputation and brand identity would be incalculably burdensome to the company.
As of early this week, the Justice Department asked the court to postpone a hearing after finding a potential way to hack the device through another method. The court did stay the ruling which would make Apple comply with the FBI. If this method is unsuccessful however, the battle between Apple and the FBI will likely go on for a very long time. “I have every anticipation that this is wending its way to the Supreme Court and I do not know what the Supreme Court will think about this,” explains Nielsen.
It shouldn’t come as a surprise that the outcome of this particular case is difficult to predict. After all, our society has been grappling with the same issues for centuries. According to Nielsen, this public fight is just the latest manifestation of “privacy versus security, which is kind of a central and eternal argument in a democratic state and ours in particular.”
Nielsen says, “we already accept the idea that there are certain areas of private activity and information that the government cannot gain access to, including communications between spouses, communications between doctors and their patients, communications between lawyers and their clients, the contents of diplomatic baggage, the identity of journalistic sources. We may or may not be comfortable extending such a zone of privacy to the contents of every person’s smart phone, but it isn’t like we don’t allow such zones of sacrosanct privacy already. We have a choice we need to make about that, as a society, and we simply haven’t made it yet.” As American citizens, all of us have some notion of what kind of culture and society our country should foster.
For most, that picture includes some balance of freedom and happiness with safety and security. For some Americans, the fact that some security mechanisms can encrypt and protect information beyond the government’s ability to ever reach it is healthy and desirable. Others worry about a day when the government cannot protect its interests due to its inability to gather intelligence. According to Nielsen, “There may be coming a day where the government is uniquely at a disadvantage when it comes to technology.” On the other hand, this case could set a precedent that gives the government the right to access every secure thing and, depending on an individual’s particular view of the government, they may be okay with that.
At various times throughout our collective past, the balance between privacy and security has been challenged by specific events. Those moments have forced us to reassess our values and to make difficult decisions. According to Jeff Nielsen, the recent public dispute between Apple and FBI may be one of those moments.
While many media outlets and pundits have led us to believe that there are simple answers and obvious conclusions in this case, reality is much more complex. As part of an age-old debate, this case cannot be simplified into basic notions of right and wrong. Instead, Americans must evaluate and decide what kind of society they want to live in. If Nielsen is correct, this probably won’t be last time the decision must be made.
Jeff Nielsen is an attorney, licensed to practice in Utah and California. He is also Associate Professor/Lecturer at the David Eccles School of Business in the Department of Entrepreneurship and Strategy. He teaches students business law, intellectual property, and the foundations of business thought. His analysis and opinions on this particular case should not be interpreted as an offering of legal advice or assistance.