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Thursday, February 18, 2016

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Chanson de Roland

It seems to me that the courts will have to decide three legal issues:

First, since Congress hasn't yet authorize the mandatory creation of backdoors into a computing device's security under any circumstances, is a writ to enforce a search warrant requiring Apple to do just that, create a backdoor in its the iPhone and iPads (I say iPads because they use essentially the same OS as the iPhone) beyond the scope of a legal search and, therefore, not within jurisdiction of any court? And being outside of a court's jurisdiction, the All Writs Act does not, by its express terms, authorize such a writ?

Second since, as a matter of well settled law, the government may not constitutionally require a private person to aid the government in performing its ministerial duties, including investigating crime, except perhaps as an incident to an otherwise constitutionally valid legal duty, may a writ constitutionally require Apple to use its art and resources to create a backdoor into its iPhones and iPads to abet the government's investigation of crime, even where, as here, only Apple would have the ability to create that backdoor into its iPhones and iPads? If so, where does that ability to conscripts a private person's art, skill, and resources to investigate crime end? Can I conscript a parent to aid in the execution of surveillance warrant against his or her child by wearing a wire? Can I conscript a waiter in a restaurant to eavesdrop on a criminal's conversation at in that restaurant? If not, why not?

Right now Apple is using all of its engineering resources to get the iPhone 7 ready for introduction to the market later this year. Those same engineers would now have to be seconded to the government's service to make a version of Apple's iOS that doesn't have important security features, which could delay the introduction of a product that generate billions in revenue. Who is going to pay for that, even if it is constitutional to order Apple to do it? And breaching iOS security--iOS is the operating system for iPhones and iPads--will cost Apple vast amounts of business and goodwill in many markets. Who is going to pay for that? Surely, the government would have to reimburse Apple for perhaps billions in lost revenues.

Third, in effect the government is arguing that the All Writs Act can be used do to more than make a party surrender what's in its/his possession and/or control but to also make Apple, and presumably anyone, its agent, its servant, to do a thing, which here is to design software to breach the iPhone and iPad's security. Can the the All Writs Act be read to constitutionally authorize an order conscripting a private person, and thus seizing that person's time, resources, and will, as the government's agent to do a thing, when existing precedent suggests that the government may only recruit volunteers and/or enter into a voluntary contract for good and/or services? Is that consistent with constitutionally prohibition against the government seizing property without just compensation and then only for a government purpose? Is that consistent with the First Amendment's freedom of association and speech? Doesn't that violates the 13th Amendments prohibition against slavery and involuntary servitude? What does the government do if Apple loses but Tim Cook refuses to order his engineers to design backdoors into the iPhone and iPad? What does the government do if Cook does give that order but his engineers refuse to obey it? Would you jail them under penalty of criminal contempt, when the most that you could do an FBI agent who similarly refused to use his skill and art to do the same thing would be to fire him, because slavery is illegal? If that happened, I suppose the FBI would seize all of Apple's relevant IP and have the NSA design and develop and maintain the iOS. That will sell really well, won't it?

If the government can expand the All Writs act to require anyone to be its use his art, skill, and resources to investigate crime or otherwise compel a person to be its agent to investigate crime, what can it not do in conscripting a person into its service to carry out its ministerial functions?

George

Roland:

Thanks for the detailed comment. I agree. The U.S. Congress needs to clarify things with updated laws. I went back and forth about whether to add this as a 12th item in the above list of privacy issues. I will probably discuss this in more detail in a future blog post. I didn't want to overwhelm readers, as the whole affair is complicated enough.

George
Editor
http://ivebeenmugged.typepad.com

George

Related reading for everyone:

The U.S. has Gone F&*%ing Mad
https://medium.com/@jamesallworth/the-u-s-has-gone-f-ing-mad-52e525f76447#.lc2gjvu60
#AppleVsFBI #surveillance #terrorism #Apple #government #guns

In Employee Email, Apple CEO Tim Cook Calls For Commission On Interaction Of Technology And Intelligence Gathering
http://techcrunch.com/2016/02/22/in-employee-email-apple-ceo-tim-cook-calls-for-commission-on-interaction-of-technology-and-intelligence-gathering/

George
Editor
http://ivebeenmugged.typepad.com

Angel Healy

This discussion could really go on for too long. My opinion regarding a "back door" or anything that has something to do with a capability of sneaking into someone's private device, just totally debunks the idea of having that device as your "personal" gadget. Unless, we totally get rid of our perception that these devices are as private as our own bathrooms while taking a bath.

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