Image [cc] Josh Bancroft

This morning, the American Library Association came out against the FBI’s attempt to order Apple to unlock an iPhone connected to the San Bernardino shooters, who murdered 14 people and injured another 22 back in December 2015. ALA’s Managing Director of the Office of Government Relations issued the following statement:

The only thing that could make last December’s attack in San Bernardino more horrible would be its use to profoundly erode the Constitution’s protection of our fundamental freedoms. Man­dated ‘back doors’ into encrypted systems cannot successfully be labelled ‘Bad Guys Keep Out.’  The only way to protect our data and, ultimately, our freedom is to fight any attempt by the courts and Congress to hack the Constitution.  ALA stands with Apple.

I also stand with Apple on this issue, and encourage my peer Law Librarians and Legal Information and Technical professionals to do the same. Librarians have always stood up for the rights of citizens against government intrusion. Long before there was a public uproar, or Edward Snowden, Librarians were pointing out and fighting the privacy breaches of the PATRIOT Act. It is time to stand up again and support the Constitution over the individual situation, regardless of the horror and tragedy surrounding the reason we wish to bend the rules.

Apple’s CEO, Tim Cook, issued a response this week rejected the United States government’s request where he underlined the dangerous precedent this order would create:

The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

It appears that the primary reason that the FBI is asking Apple to break the encryption and open the phone is one of convenience and cost. The government has not exhausted less intrusive methods of opening the shooter’s phone. Yes, it may cost more money and time to unlock the phone without Apple’s help, but it will cost far less in what this dangerous precedent creates if the Government successfully orders Apple to unlock that phone.

I stand with Apple.

  • The (or a) problem with law "enforcement" is that they don't know when to quit. There is a case on the books that says where there is evidence of excessive discovery, subsequent evidence is inadmissable because of the poisonous fruit.

    Anyway, while I've never liked Apple, I'm all for sticking it to a bully. So, you go, Apple, and win one for the little guys.

  • I completely agree!

  • Anonymous

    This is a little more complicated than your post suggests since the phone at issue was provided to the assailant by San Bernadino County, so the phone itself is owned by the county and the county has given the FBI permission to unlock the data on it. One could make a similar impassioned argument that the owner of property (in this case the county) should have the right to do what he or she or it wants with that property (in this case unencrypt data). Furthermore, the government is not asking Apple to do any of the things Apple is concerned about. It is only asking to unencrypt one phone. I'm certainly aware of the slippery slope argument, but the government is constrained by the 4th Amendment and the things Apple is concerned with would certainly violate the Constitution. One could argue that our government doesn't care about Constitutional rights, but if that is truly the case than nothing would prevent the military or the FBI from abducting Tom Cooke and his family and force Apple to do what it wants. Also, I'm not sure how the fruit of the poisonous tree applies here since the county owns the property that the FBI wants to search. The FBI certainly has probable cause for the information on the phone, even if a warrant would be necessary.

  • Thanks. I know it isn't as simple as my short post suggests. Legal issues like this can take volumes to explain. However, I think (keeping it on a simple level), it is never about just one phone, and a one-time occurrence. Once something like this happens, it tends to desensitize the public, and gives the government a new entry into building upon this "one-time" event to help justify the next "just in this instance" case. Look how the surveillance issues went from "foreign" to "starts inside the country, but leads to foreign contact" to "let's gather information, but not really look at it… for now" etc., etc.

    Justice Oliver Wendell Holmes said "Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance… but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."

    A situation where a murder's phone, owned by the county, and containing potential damaging information on others that might be plotting against the public, makes for a compelling argument to take a shortcut with the legal issues. But American Common Law isn't built on one-off cases. These one-offs suddenly become the building blocks for morphing the rights of those who were never considered when these "great cases" were decided.

  • Anonymous

    I'm not sure I would put this in the catagory of "great" cases. It seems like it has much in common with a ton of existing jurisprudence regarding the expectation of privacy in regards to property owned by an employer or a third party that is used in the commission of a crime. This is not much different than a company giving permission to search an employee's work laptop for evidence of a crime or for the owner of a car giving permission to search it after the person who borrowed it was suspected of criminal activity. The only real difference is that the property owner cannot access the information due to technological limitations that presumably can be overcome by the manufacturer of the phone. I can certainly understand if Apple did not want to do this because it was either not feasible or because it would require a significant amount of development and resources, but the privacy issue seems particularly weak in this case.