APPLE RESISTS THE FBI, Sets a Precedence for Self-Governance

Apple CEO, Tim Cook, is the definition of bold. All eyes are on his company as he did the unthinkable — denied a court order.

The FBI is asking Apple to create a program that will undermine their security mechanisms. The data stored on phone of gunman Syed Farook is crucial in the investigation of the San Bernardino shooting. It doesn’t take a genius to understand the creation of such a program would greatly weaken one of the strongest encryption systems used world wide.

A judge ordered Apple to comply with they request.

They did not.

The question in this case is not whether Apple should help the FBI in their investigation. That is a question of a greater-good, a choice between the lesser of two evils. The real issue in this case is the unconstitutional federal demanding of a private company. If Apple decides to involve their company and resources, the decision will be one they make on their own — not one the government forces upon them.

Tech Crunch offers a detailed look into the Apple vs. FBI struggle.

What is the FBI demanding?

1. The FBI is demanding that Apple make a new software product.

2. That software product would have to be designed in accordance with specifications provided to Apple by the FBI.

3. Once Apple created that software product, it would have to test the product to ensure it met Apple’s own quality standards.

4. Apple would have to test and validate this software product so that criminal defendants would be able to exercise their constitutional rights to challenge the government’s legal claims as provided by the Federal Rules of Evidence (FRE).

Under what laws is Apple protected?

Communications Assistance for Law Enforcement Act: Under CALEA, there is a strong argument that Apple cannot be legally required to create new software of any kind for any department of the federal government. When Congress passed CALEA, it had the opportunity to include device manufacturers like Apple within the scope of the law. Congress decided to require telecommunications companies to ensure that their equipment and facilities are built in a way that allows the government to conduct surveillance on the basis of a lawful surveillance warrant.

In other words, telecommunications companies have to build in a back door. However, under CALEA, Apple is not a telecommunications company; instead, Apple is considered an “information service” to which CALEA does not apply. In short, Congress made it clear they did not intend for CALEA to even apply to companies like Apple.

Even if CALEA applied to Apple, the FBI would not be entitled under CALEA to force the company to break its encryption protocol. The statute in section 1002(b)(3) states that telecommunications companies are not responsible for decrypting communications “unless the encryption (1) was provided by the carrier and (2) the carrier possesses the information necessary to decrypt the communication.”

All Writs Act: AWA also does not allow the FBI to compel Apple to create new software. Enacted in 1789 as a stop-gap that allows the government to efficiently administer its given legislative privileges, the AWA is being given an impermissibly broad interpretation by the FBI…

In a nation of laws, the FBI’s attempt to expand the AWA is dangerous. The FBI’s interpretation of the AWA transforms the law into something it was never meant to be: a tool granting government agencies boundless powers not authorized under the Constitution or in existing federal law.

Lawyers have a fancy way of describing this problem. They say that expanding the AWA violates the separation of powers between the federal courts and Congress. After all, what is the purpose of Congress if our courts are allowed to expand federal law without any meaningful limitations? One might go further still and say that forcing a company to break its own technology appears to be something a dictatorship might do, not a democracy like the United States.

What should Apple do?

Apple should do what is necessary to preserve our enduring constitutional values, including life, liberty and the pursuit of happiness. Those values also include the privacy and speech rights protected by the Constitution. The First Amendment famously protects an individual’s right to say what he or she thinks or feels, and the Fourth Amendment guarantees that Americans shall be free of unreasonable searches and seizure…In this particular case, Apple has a responsibility to resist the FBI’s efforts to force the company to undermine the security measures in its mobile operating system

Perhaps this is the right time to share Franklin’s adage about the moral quality, or lack thereof, of folks who want to trade privacy for a little temporary security. Franklin wrote the following to the Pennsylvania Assembly in 1755: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

With their refusal, Apple created a new precedence for self-governance. They did now cower or back down when challenged with this issue. Apple knows their constitutional rights and understands the limits of the federal government.  They have effectively proven the federal government does not have control of the entire private sector — as they like to assume.

Let this case set an example for all businesses, whether they be a one or a one-thousand man operation. You are protected and you have a country willing to back your constitutional rights.

Read the full Tech Crunch analysis here.

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