1.1 What Apple says
Yesterday Apple published a letter titled "A Message to Our Customers" under the name of Tim Cook, the CEO of the company.
In the light of the recent home-grown terrorist attacks and such potential threats, FBI is apparently—using the All Writs Act of 1789 to justify its expansive demand—requesting a special version of iOS, which would allow the law agency to brute force the encryption. Apple already has been fully cooperating with law enforcement agencies if presented with appropriate warrants, but what FBI is demanding is a backdoor that "would have the potential to unlock any iPhone in someone’s physical possession." Apple claims such software does not exist and will not make one—despite that it believes "the FBI’s intentions are good."
Concurring with the letter, I think the FBI request is beyond a simple potential threat to security and privacy. I also believe that FBI has good intents: its agents work hard—often risking their lives—day and night to protect the nation, and I have great respect and gratitudes for such individuals. However, the potential implications of the request simply and strikingly resemble general warrants and writs of assistance, on which the Framers had great concerns.
The most critical part is the possibility of setting a dangerous precedent, which may fundamentally alter the very nature of privacy that Americans have enjoyed and fought for since the founding of the republic—undermining "the very freedoms and liberty our government is meant to protect." As Tim Cook suggested in the letter, we should "step back and consider the implications."
1.2 What the Court held
In the United States v. Robinson (1973), the Court held that "in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment."
However, how about a (smart)phone?
Modern smartphone—a result of extraordinary engineering that allows "managing detailed information about all aspects of a person’s life"—can paint an unprecedentedly detailed picture of its owner—the whole what, when, how, who, where, etc. Thus the Supreme Court, in Riley v. California (2014), has unanimously ruled that warrantless search of cell phones during arrest is unconstitutional, acknowledging the uniqueness and importance of the information stored in:
"a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— unless the phone is."
Chief Justice Roberts, in his opinion, further says:
"modern cell phones are not just another technological convenience. ... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."
To answer the original question posed, Chief Justice Roberts finishes his opinion with the following concise point:
"... Get a warrant."
We are approaching a critical point, which can potentially re-shape the nature of privacy and thus the world we live in. In the advent of the Internet of Things (IoT)—where everyday physical objects such as appliances, vehicles, buildings, and other items would collect data, communicate, and compute—and many other unprecedented technological advancements, it is about the time to be proactive to the changes that "will" occur in near future. As Justice Alito said in his concurring opinion, we should not leave the protection of our privacy "primarily to the federal courts using the blunt instrument of the Fourth Amendment." But do we have both the necessary intent and the proper instrument?
This issue is not limited to Apple; it will be or may already have been faced by any major tech companies such as Microsoft, Google, or Facebook. I applaud Tim Cook for standing up and starting the debate. I hope this sparks a civic engagement, which may provide a moment to create the intents necessary for architecting the new instruments. We the people, and thus the representatives elected by us, should "assess and respond to the changes."
In fact, the frameworks and the instruments should reflect the organic nature of evolving technology. However, it should always preserve the very rights that countless individuals have bled to defend since the founding of the republic.
DISCLAIMER: any speculation made here is a work of fiction/imagination. Such speculations are either the products of imagination or used in a fictitious manner.
2.1 The Imitation Game
In this historical drama film of Alan Turing and his work at the Bletchley Park, Turing convinces the British intelligence agency to limit the usage of the new decryption capability. Turing argues that acting upon every piece of decryptable intelligence would certainly make the enemy suspicious and subsequently change or stop using the encryption. Therefore, the intelligence agency carefully picked a limited number of decrypted messages to act upon, making the information leak appears to be coincidental and consequently allowing the enemy to have a fake sense of security.
It is highly improbable but not impossible that the company and the agency are downplaying the current decryption capability for this extremely unlikely scenario:
- Make (unintelligent) criminals believe that unlocking or decrypting iPhone is impossible.
- Subsequently, such criminals are more likely to use and trust the device.
- Then voila...
2.2 The PR Game
I'm sure that Apple has consulted with an army of attorneys before jumping into this water, so they probably can establish a solid legal basis. However, Apple is publicly going against the request/order in ideological ground—that customer privacy are critical issues and should not be taken lightly.
In their dedicated "Privacy" section of the website, Apple talks about its philosophy on the matter and delineates how they handle and protect customer information. Also in a dedicated section, Apple provides information on the "Government Information Requests" matter by explaining what and how they give and providing documents such as the annual transparency reports. All in plain English and clean graphics.
I applaud and greatly appreciate the unambiguous and deliberate position on privacy and customer information, and such carefully crafted value system (trustworthy, acting on principle, etc.) is a great avenue to attract customers including myself. I believe or at least want to believe that such stance has resulted from a carefully architected internal value system. However, it makes sense for the company to seize the inevitable and turn it into a positive PR opportunity.
Indeed when Steve Jobs returned to Apple in late 90s, one of the very first things he did was holding an internal campaign to highlight the importance of values:
"To me marketing is about values." - Steve Jobs
The delicate and ambiguous position—of being stuck between the customers and the government, especially for the companies that rely on their user data as primary revenue streams—has made this issue inevitable. By seizing the moment, Apple will be able to stand in the "higher moral ground" and gain an unique vantage point and first hand experience on how the process unfolds. Of course, the risk associated with is enormous.
As Tim Cook said in his recent interview with 60 Minutes from last year (before the terrorists attack), I love the idea of living in such ideal world:
"I don’t believe that the tradeoff here is privacy versus national security, ... I think that’s an overly simplistic view.
We’re America. We should have both.”