Apple CEO Tim Cook has spent a lot of effort keeping this case in the public, even giving an interview with Time Magazine’s Lev Grossman, which includes statements like:
Inside Apple this idea is nicknamed, not affectionately, GovtOS. “We had long discussions about that internally, when they asked us,” Cook says. “Lots of people were involved. It wasn’t just me sitting in a room somewhere deciding that way, it was a labored decision. We thought about all the things you would think we would think about.” The decision, when it came, was no.
Cook actually thought that might be the end of it. It wasn’t: on Feb. 16 the FBI both escalated and went public, obtaining a court order from a federal judge that required Apple to create GovtOS under something called the All Writs Act. Cook took deep, Alabaman umbrage at the manner in which he learned about the court order, which was in the press: “If I’m working with you for several months on things, if I have a relationship with you, and I decide one day I’m going to sue you, I’m a country boy at the end of the day: I’m going to pick up the phone and tell you I’m going to sue you.”
It also wasn’t lost on Cook that the FBI chose not to file the order under seal: if Apple wasn’t going to help with a case of domestic terrorism, the FBI wanted Apple to do it under the full glare of public opinion.
The spectacle of Apple, the most admired company in the world, refusing to aid the FBI in a domestic-terrorism investigation has inflamed public passions in a way that, it’s safe to say, nothing involving encryption algorithms and the All Writs Act ever has before. Donald Trump asked, “Who do they think they are?” and called for a boycott of Apple. A Florida sheriff said he would “lock the rascal up,” the rascal meaning Cook. Even President Obama, whose relations with the technorati of Silicon Valley have historically been warm, spoke out about the issue at South by Southwest: “It’s fetishizing our phones above every other value. And that can’t be the right answer.”
As against that, Apple has been smothered in amicus briefs from technology firms supporting its position, including AT&T, Airbnb, eBay, Kickstarter, LinkedIn, Reddit, Square, Twitter, Cisco, Snapchat, WhatsApp and every one of its biggest, bitterest rivals: Amazon, Facebook, Google and Microsoft. Zeid Ra’ad al-Hussein, the U.N. High Commissioner for Human Rights, spoke out in Apple’s defense. So did retired general Michael Hayden, former head of both the NSA and the CIA. The notoriously hawkish Senator Lindsey Graham, who started out lambasting Apple, switched sides after a briefing on the matter. Steve Dowling, Apple’s vice president of communications, showed me a check for $100 that somebody sent to support the world’s most valuable technology company in its legal fight. (Apple didn’t cash it.)
(click here to continue reading Inside Apple CEO Tim Cook’s Fight With the FBI | TIME.)
The case seems weak, for a number of reasons (encryption is not bound by political boundaries; Apple shouldn’t be compelled to work for the government especially when they have done nothing wrong; the laws referred to as CALEA would seem to forbid the FBI’s approach; we don’t live in a police state; and so on), but you can’t assume that the judge in the case can be swayed by logic. I’d rather Tim Cook and Apple engineers were spending time improving iTunes, and fixing bugs in Mac OS X El Capitan instead of fighting government overreach, but you can’t control the universe, only react to its whims.
Only the Thought is Dark
I want to note another point, as discussed extensively by Jonathan Zdziarski: the idea of a warrant-proof zone. Doctor-patient privilege, diplomatic pouches, married couples, journalistic sources, these and other areas are also “dark” in the FBI parlance. Even in court, even in cases that inflame the public’s interest, even then, a lawyer cannot be compelled to reveal what their client told them.
There are other examples that could be mentioned, but the point is that our country recognizes many laws and international treaties that support the concept of warrant proof as a valid concept. It is not only well within Apple’s rights to produce a product that happens to be warrant-proof, but it’s actually Apple’s responsibility to create a product that’s capable of enforcing the highest level of security permitted by our country’s laws… not the lowest. Apple is well within not only their rights, but in practices that support and place appropriate locks consistent with the levels of privacy our country recognizes. These products protect everyone – diplomats, doctors, journalists, as well as all of us. Of course they should be this secure. If our own country recognizes warrant proof as a thing, of course our technology should too.
We, as everyday Americans, should also encourage the idea of warrant proof places. The DOJ believes, quite erroneously, that the Fourth Amendment gives them the right to any evidence or information they desire with a warrant. The Bill of Rights did not grant rights to the government; it protected the rights of Americans from the overreach that was expected to come from government. Our most intimate thoughts, our private conversations, our ideas, our -intent- are all things our phone tracks. These are concepts that must remain private (if we choose to protect them) for any functioning free society. In today’s technological landscape, we are no longer giving up just our current or future activity under warrant, but for the first time in history, making potentially years of our life retroactively searchable by law enforcement. Things are recorded in ways today that no one would have imagined, even when CALEA was passed. The capability that DOJ is asserting is that our very lives and identities – going back across years – are subject to search. The Constitution never permitted this.
The bottom line is this: Our country actually recognizes warrant proof data, and Apple has every right and ethical obligation to recognize it in the design of their products. As Americans, we should be demanding our thoughts, conversations, and identities be protected with the highest level of security. This isn’t just about credit cards.
(click here to continue reading Apple Should Own The Term “Warrant Proof” | Zdziarski’s Blog of Things.)