But it actually makes more sense than that
Analysis OK, we got it: Apple good, FBI bad.
But seeing as the court case between these two powerful institutions is taking on ever-increasing importance, we figured it was time to actually listen to what law enforcement has to say about the case of the locked phone.
And the truth is, it makes a lot of sense.
Certainly enough sense for it to be required reading for anyone who wishes to be taken seriously on the issue.
And then on the other hand, the formal arguments cite the Norman Conquest, make up crazy terms like “cyber pathogen” and try to stretch the law from illegal gambling to all our personal lives.
In short, it’s a mixed bag.
While Apple has been listing the briefs filed with the court on its website, we note one missing: the 18-page argument in favor of the FBI’s position by the Federal Law Enforcement Officers Association (FLEOA), the Association of Prosecuting Attorneys (APA) and the NSA. No, not that one, the National Sheriffs’ Association.
This joint document [PDF] effectively represents the law.
The people who keep everyone safe on a day-to-day basis by tracking down criminals and using the legal system to ensure they get punished for their crimes.
The folk that make the difference between living in 2016 and 1886.
So what do they have to say?
A big part of the facts-based argument for access to people’s phones is taken from a 42-page report produced by New York District Attorney Cyrus Vance – who also appeared at the recent Congressional hearing on the FBI-Apple case.
Vance produced a list of real-world cases where access to people’s phones has led to real evidence, which has led to real convictions.
They are somewhat harrowing, as was no doubt the intention: a man who accidentally filmed his own murder; two rapists caught discussing their use of mace spray; photos leading to the convictions of pedophiles and sex traffickers, and so on.
The report also notes a recent example where a pregnant woman was murdered at the front door of her own apartment and the police feel that access to her locked phone could yield vital evidence in finding her killer.
The FLEOA/ALA/NSA filing also references Vance’s report when it highlights a conversation between two suspected criminals who were excited about the fact that their iPhone software version meant that the cops wouldn’t be able to get into their phones.
“I don’t think they can open it,” one inmate said over the recorded phone line. “I mean, you know how much shit is on that phone.”
The crux of the law enforcement argument is pretty simple: in order to do their jobs they need to be able to get at relevant evidence.
The brief notes: “In this digital age, data stored on mobile devices has proven time and again to be critical in assisting law enforcement officers to do their jobs.”
Apple’s arguments – which have been backed up with some vehemence in the press and by the tech industry – have centered around the fact that they are being asked to break their own security.
But law enforcement sees things rather differently.
They are arguing instead: if we let this stand, law enforcement will effectively be cut off from the predominant form of communication of modern times.
When officers are granted search warrants to go into people’s houses, it often turns up valuable information about people’s movements, their associates, their activities. Or it used to.
In 2016, people don’t have address books and contact numbers written down.
They don’t have printed versions of their credit card bills.
In many cases, they don’t even have receipts of purchases.
It is all done electronically and, increasingly, all on a single device – your phone.
The police are basically saying search warrants are going to be useless if there is no way to access a phone without the owner providing access details.
And since there is an entire amendment – the Fifth – focused on self-incrimination, it’s safe to assume people will simply refuse to tell the cops what their passcode is.
There’s another aspect to having access to phones: they can provide breadcrumbs to other evidence.
So, while law enforcement can and does subpoena, for example, email providers to supply information on a particular individual, because so much goes through our phones these days, they may not be able to even find out what email address a criminal is using, because it’s behind that locked phone.
The same argument being used by privacy advocates and Apple – that the modern smart phone contains so much information that it needs extra protection – can also be used to argue why it is all the more important law enforcement can gain access to it – because it may be the only container of vital evidence.
Law enforcement is genuinely concerned that if it becomes common knowledge that a certain type of phone and a particular app used together are untouchable by the authorities, then almost immediately criminals will move to them, and make their jobs significantly harder.
It’s a concern that, regardless of your views on this particular case, everyone needs to take seriously.
This is how the FLEOA/ALA/NSA filing summed it up: “If Apple can refuse lawful court orders to reasonably assist law enforcement, public safety will suffer.
Crimes will go unsolved and criminals will go free.
Apple’s iPhones and iPads are ubiquitous.
They are powerful.
They are used by criminals, as well as crime victims.”
And it notes this is “not a theoretical debate,” quoting an example of “one big-city district attorney’s office” where roughly half of the mobile devices recovered during investigations are inaccessible because they run iOS 8.
It notes there are 100 inaccessible devices in Harris County, Texas; 30 in Cook County, Chicago; 46 in Connecticut; and so on.
And then come the legal arguments
Unfortunately, we then hit the legal arguments. Which is where, ultimately, the decision is going to be made.
In a slightly worrying echo of the fact that the FBI is relying on the All Writs Act, which was first introduced in 1789, to argue its case, the FLEOA/ALA/NSA filing [PDF] has also gone to old law to make a modern case: a 1928 state court decision.
Even more amazingly, it quotes that 1928 decision referring even further back in time.
This is the quote from Justice Cardozo in the 1928 New York case of Babington vs Yellow Taxi Corp:
As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.
In case you’re wondering, Edward was born in 1239 and died in 1307.
But not content with quoting the traditions of an ancient English king (wasn’t there some kind of American revolution in 1775?), the paper then stretches even further back to before 1066 and the Norman Conquest. No, seriously.
It quotes the Supreme Court (in 1895) when it said: “The basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest…”
We get what law enforcement is trying to do here – demonstrate an accepted concept that goes way back in time – but it would be nice to hear a legal opinion that stemmed from events where people weren’t still using bows and arrows and Charles Babbage’s Difference Engine has been invented.
It’s also worth briefly noting that, as FBI director James Comey said earlier this week in Congress, it is relying on the 1977 case of the US government against the New York Telephone company for its interpretation of the 1789 All Writs Act.
That case saw the telephone company obliged to allow investigators to wiretap a group of illegal gamblers and listen in to their conversations.
The FBI and the FLEOA/ALA/NSA argue that this interpretation is actually less intrusive than in the Apple iPhone case because the “data” on the iPhone is “at rest,” whereas the gamblers’ conversations were real time.
It would be just as easy to argue, however, that the court ordered the New York Telephone company to grant investigators access to its existing systems to listen in.
Apple has noted, quite rightly, that the FBI is asking the company to actively develop a system in order for them to carry out investigations, rather than allow them access to an already existing system.
And then of course there is the term produced by San Bernardino County District Attorney, Michael Ramos, which in the course of a single day has become its own meme due to its failure to exist in any meaningful form: “cyber pathogen.”
Using ancient history to argue for the digital age is one thing. Making up a completely new term is something else.
“The iPhone is a county-owned telephone that may have connected to the San Bernardino County computer network.
The seized iPhone may contain evidence that can only be found on the seized phone that was used as a weapon to introduce a lying dormant cyber pathogen that endangers San Bernardino’s infrastructure,” argued Ramos, to immediate mockery.
The website cyberpathogen.com is already up and links to a sarcastic takedown of Ramos’ effort at persuasive argument.
But before everyone gets too excited about how poor the FBI’s legal case is, it’s worth considering the fact that Apple’s argument also falls back on an ancient document.
Sure, it’s the 1787 Constitution of the United States, but Apple’s core arguments that the FBI is breaking its various amendments are shaky at best.
For example, it claims that the First Amendment (1791) is broken because, apparently, code is speech and by insisting Apple create a version of iOS that will allow the FBI to break into the phone, it is compelling speech. Hmmm.
Not only that, but Apple argues the Fifth Amendment (1791) is also broken through its due process clause because the FBI order is arbitrarily depriving Apple of its liberty. Really?
But in what may be the Apple equivalent of the “cyber pathogen,” a paper in support of its stance from Lavabit (a discontinued encrypted webmail service) argues that the court order breaks the Thirteenth Amendment (1865) – that’s right, the one abolishing slavery. How does that work exactly? We don’t yet know because the proposed brief has yet to arrive.
It is worth noting, however, that Lavabit does not actually exist any more, and Apple has chosen not to feature its defense on its page of court briefs, joining the law enforcement community’s arguments in not being recognized by Apple.
Taking a step back, it’s fair to say that the majority of law-abiding citizens would want prosecutors to be able to access evidence that could help convict someone of a serious crime, regardless of how strongly they feel about their own personal privacy.
So the question then becomes: what is the solution? And where does the balance lie? Unfortunately for law enforcement, the Snowden revelations have given everyone reason to question any assertion that the authorities will only be accessing the data of suspect people.
We know that the US government kept the records of every single one of our phone calls. We know that they spied on everything everyone did online. We know that they tapped data centers and fiber optic cables and decided the best way for them to do their jobs was to assume everyone was guilty and gather all possible information on them in case it comes in handy later.
And we know they went out of their way to make sure no one knew about what they were doing.
After all that, making the basic argument of “trust us” sounds, at best, hollow.
And yet, law enforcement’s argument remains a good one, despite the appalling abuses of some arms of the US government.
There has always been an acceptance that those upholding the law can go through an independent legal process to bypass society norms about privacy. Why? Because society accepts that the people that break its rules and laws should not be able to rely on those same laws to prevent them from being punished.
It is why there are arrest warrants and search warrants and a whole range of extreme legal instruments that suspend the normal rules.
At the core of it, law enforcement is asking that we ensure that same long-held understanding is extended to the digital era.
As it stands, Apple’s iPhone security features – and its refusal to offer a way around them – is breaking with the past. Public sentiment right now appears to be in favor of putting unbreakable protections on mobile phones, in large part because almost everyone owns one.
Smart phones are oddly personal devices and the idea of someone accessing them in a bid to find information feels, in some respects, even more violating than entering your home.
But law enforcement is trying to tell anyone that will listen a hard truth: you like it now, but wait until you or your family are at the end of a crime and the person walks free because they were unable to prove their case.
Thanks to that black-screened iPhone.
Then you may not back Tim Cook quite so strongly. ®