Since iOS 8, iPhones have been fully encrypted, requiring a passcode that only the user has access to to make the device’s files legible. A work-owned iPhone 5C used by a perpetrator was recovered from December’s San Bernardino mass shooting, and while authorities have been given access to the iCloud online backups, the FBI claims these do not contain recent enough info. On February 17th, the Federal Bureau of Investigations succeeded in obtaining a court order that mandates Apple manually update the phone to an altered version of iOS that would have the ten attempt limit and time delay security features disabled, allowing the FBI to brute force the phone by entering all possible four digit codes. Attempting to do so without the altered operating system would erase the encryption key and permanently wipe the phone.
The order was a first of its kind, taking advantage of the All Writs Act of 1789, which vaguely allows courts to issue any order necessary in aid of the law. Apple publicly challenged the order in an open letter, drawing a massive amount of media attention, including a John Oliver rant. The next hearing will happen on March 22nd, the day after Apple conveniently scheduled a product release keynote.
In a parallel case last week, New York federal Magistrate Judge James Orenstein ruled against the federal prosecutor’s use of the All Writs Act, stating, “Nothing in the government’s arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply rooted values to provide assistance to the government the court deems necessary,” worrying that the precedent either case would set could cause a, “virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.”
Federal prosecutors quickly asked a district judge, a superior of Orenstein, to countermand his ruling, appealing:
In this case, the government arrested a criminal. The government got a warrant to search the criminal’s phone. Law enforcement agents tried to search the phone themselves, but determined they could not do so without risking the destruction of evidence. The government then applied for a second court order to ask Apple to perform a simple task: something that Apple can easily do, that it has done many times before, and that will have no effect on the security of its products or the safety of its customers. This is how the system is supposed to work.
Media attention has quickly polarized, dividing the country equally into two non-partisan groups: 51% supporting the FBI, 38% Apple, remaining undecided, mirroring the Snowden debate. Executives from Twitter, Google, Facebook, and Microsoft have unanimously come out in support of Apple’s side, while Trump has called for a boycott of iPhones, and Clinton and Bill Gates have stated delicate uncertainty. In the contentious media debate, one side portrays FBI as “bullying” a corporation into breaking our privacy, and the other sees the corporation as aiding terrorism.
After Apple took the case public in an open letter and the statements from executives that followed, the federal government’s response has been to offer their current proposal as the best deal the public will get, citing precedence in the shutdown of the Lavabit email service after being found in contempt of court for not handing the FBI the encryption key to NSA leaker Edward Snowden’s account. The formal rebuttal made a thinly veiled threat of escalation, stating:
The FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labour by Apple programmers.
President Obama pleaded from a similar angle at Austin’s SXSW conference, viewing “absolutist” polarized opinions as a slope to reactionary disasters like the Patriot Act:
What will happen is, if everybody goes to their respective corners, and the tech community says ‘either we have strong perfect encryption or else it’s Big Brother and an Orwellian world’, what you’ll find is that after something really bad happens, the politics of this will swing and it will become sloppy and rushed and it will go through Congress in ways that are dangerous and not thought through.
This is a case entirely of principle and precedent–the phone itself is said to have little chance of containing useful evidence. Despite half the country taking a position against them, Apple’s perception has benefited hugely as a result of this battle, giving users more trust in the devices they own, a reputation that suffered for years after hundreds of nude photos of celebrities were leaked from hacked iCloud accounts. Security experts almost universally agree with Apple’s points, and dismiss the FBI’s rebuttals as technically inept. Once brute-force prevention has been disabled on one phone, law enforcement will be ready for hundreds of other cases, and Russia and China, countries that closely follow US policy, will certainly expect the same for their investigations. Once the code has been created, it cannot be undone. Even if fully erased from hard drives, it’ll still exist in the minds of workers, decreasing security and privacy for every user.
Establishing that the FBI is in the wrong, Apple’s position could still be more of a calculated move than CEO Tim Cook would like you to think. The Feds and Apple are equally using this case to their advantage. A tragedy as public, emotional, and confidence-threatening as the San Bernardino shooting is, it is the perfect storm for public support of the government. Opposing it in such a publicized way gives at least half of Americans the opinion that a for-profit corporation is more of an ally to the US populace than the US government, staying dignified even in a situation as controversial as a mass shooting.
We’ve seen time and time again that true progress towards a positive goal is of little importance for corporate philanthropy. For example, Apple often touts its commitment to the environment, offsetting all domestic power usage with (government subsidized) investment in solar power, slightly shifting the US grid to the cleaner end. This is undeniably positive for the world, yet minutely so. Before their shift to renewables, US Apple facilities accounted for just 1% of the company’s greenhouse gas emissions. The bulk of that carbon comes from transportation. The nature of consumer tech is not clean, or socially ethical: components are sourced from all corners of the planet and assembled far from where most finished products end up, and a wholly new lineup is released annually, requiring an incredibly fast production overturn. This means emission-heavy airmail, and lots of it. Unlike the electricity that powers the Apple Stores we all walk by, there’s not much of a face to it, so it’d need to directly decrease cost for Apple to find a reason to improve.
Consumer tech product cycles are absolutely made possible by dense, quickly-available, cheap, disciplined, fast, hardworking, and expendable labor–the unique conditions of China, where millions urbanize to life-consuming factory work that allows them to financially support their rural family in a rapidly capitalizing world. Steve Jobs was right, it’d be impossible to build enough iPhones to meet demand in the US, the infrastructure and job demand aren’t there. Yet, tech companies created this cycle that requires exploitative labor accessible through free trade agreements, as always, in the name of profit.
Sales growth is fully maximized in the West, so China is Apple’s final frontier. With over a billion people increasingly rich enough to afford iPhones, they’re going to comply with flying colors to maintain their status as the only major American internet services company not blocked in China. When China required iCloud services be hosted on state-owned, local servers, privacy was of no concern. This differs from 2010 Google, which refused the same demand, betting that Americans would view the company in a better light. Despite Android running on the vast majority of smartphones in China, the Play Store and search engine ads that Google gets its profit from are blocked. Not for long, though: a censored Play Store going live in the PROC this year. Google must have realized that a no-longer newsworthy principle of defiance wasn’t maximizing profit. After people stop caring, it’s reasonable Apple’s case will end similarly.
Apple is a bastion of manipulative ethics. They pioneered the, “double Irish,” scheme that uses subsidiaries to avoid US taxes on foreign sales–now universal practice in business, although ending per-Irish law by 2020. Tim Cook trumpets the fact that their practices are perfectly legal and the responsible option for their shareholders, and that they’d need to lobby their way to massive tax cuts to consider bringing money back to the US, similar to the moral-distancing excuses we often see politicians make. Presidential candidates and Tim Cook are right, these are certainly systemic issues, yet as individuals, they’re among the few masters of our system.
The true ethics of privacy should not be lost to a marketing technique. While the world’s largest corporation has a fighting chance against the world’s largest military industrial complex, as soon as the equation that currently determines a policy of government-defiance no longer holds–perhaps once fresher acts of terror allow more relevant fear tactics–we lose our privacy.
Encryption efforts have always been led by the free open source software movement, a method of distribution that cannot be controlled or banned like iOS eventually may be. Open source software is of course less accessible to the masses, so corporate measures that ultimately have a positive effect should be appreciated while they exist, while knowing they might not tomorrow. The government’s modern application of an act as broad as All Writs to oppose encryption is absolutely disconcerting. Yet, allowing the resistance movement to be co-opted by a corporation that happens to currently be aligned with our interests is misguided and puts organization on fragile ground.