Thursday, February 18, 2016


Elsewhere (on Facebook), I backed away from a claim that the order issued by the California Court requiring Apple to assist the FBI in accessing a locked iPhone was a 4th Amendment issue. In this particular case it clearly isn't. However, if Apple loses its challenge, the precedent set could have longer term 4th and 5th Amendment issues. (This is important because the current makeup of SCOTUS, especially since the passing of Justice Scalia, leans towards deference to the government is such cases.) There is also an interesting First Amendment issue to consider. In Bernstein v. Department of Justice, the U.S. District Court for the Northern District of California ruled that, in essence, computer code is equivalent to speech. So, is it compelled speech if the government requires Apple to create a modified version of iOS?

So, clearly there are some Civil Rights issues on the line with this order.

Another interesting angle in this case is the question of whether the FBI actually needs Apple at all. It is known that the government has tools to hack into software systems already. Specifically, the NSA has a stash of zero-day exploits it has collected over the years. Now, of course, the NSA isn't going to share those with the FBI, but could the FBI have its own stash? Also, are they really just using this order to set a legal precedent? Or are they using it to garner public support to force software companies to include backdoors in encryption tools? There is no evidence that this is what is going on, but these are some of the issues that are now in play.

Apple has a fight on its hands and we will soon see how this particular case plays out. However, there are serious security, technology, privacy, and rights implications that will play out over the longer term.

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