As you’re likely aware by now, Apple was ordered by a federal court on Tuesday to provide aid to the FBI in order to unlock the iPhone 5c that belonged to one of the shooters in last December’s terrorist attack in San Bernardino, California. Apple, in a massively delightful display of not giving a shit, is not complying with this order, and has taken to both the Court of Public Opinion and the Court of Laws and Such to fight it.
The government, naturally, is cartoonishly batting their eyelashes at the American public, cooing that they’ll totally only use this software just this one time, so there’s obviously no need to get into a tizzy about it all. “Trust us,” they hiss in our collective ear, “we’ll totally be cool about this.” Politicians of all stripes are coming out to decry Apple’s lack of blind compliance to this order, including America’s Racist, Islamaphobic, Xenophobic Id Given Human Form, Donald “The J is for Jerkoff” Trump.
As per usual, though, the politics of “We need to do things to prevent terrorists from doing bad stuff!” is mostly bullshit, and will end up hurting us all if the dumb-dumbs in the government get their way.
Before we get into my ranting on this subject, there’s probably a few things you’ll want to read first:
- Apple published an open letter to its customers, explaining their positions on this case, and why it won’t just roll over for the FBI.
- On Stratechery, Ben Thompson explains the how encryption on an iPhone works, what the hell is going on here, and other stuff that is so well-written that it makes me kinda jealous to be honest.
- On MacWorld, Rich Mogull also goes into the nitty-gritty of why this whole order is horrible, and potentially a running start down the slipperiest of slippery slopes.
Caught up? Faaaaaaaantastic!
Unreasonably Burdensome Bullshit
The FBI is arguing that this order falls under the All Writs Act, which gives federal courts the power to issue orders that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”. The Electronic Frontier Foundation (EFF), however, points out that this act is limited to orders that don’t bypass other laws, violate the Constitution, or force a third party to act in a manner that is “unreasonably burdensome”.
Forcing Apple to rewrite portions of iOS in order for the FBI to gain access to the information on the iPhone 5c in question is, in my completely uneducated opinion, almost entirely unreasonably burdensome bullshit and, in the opinion of people who actually practice law, very likely unconstitutional.
Who Owns The Phone? It Don’t Matter, Dumbass.
I understand there are privacy concerns, but in this case the phone is owned by the county—which has consented to a search—and there is a valid search warrant… It’s not unreasonable for Apple to provide technical assistance when ordered by the court.
Sen. Feinstein is correct as to the owner of the phone — it was issued by the shitbag terrorist’s job for him, so it belongs to the county. However, if I were to call AppleCare and ask them to help me get back into my phone because I forgot my passcode (and my hands were cut off, preventing me from using Touch ID to get access), their answer would basically amount to a hearty shrug and an awkward apology. From Apple’s privacy page (emphasis mine):
Encryption protects trillions of online transactions every day. Whether you’re shopping or paying a bill, you’re using encryption. It turns your data into indecipherable text that can only be read by the right key. We’ve been protecting your data for over a decade with SSL and TLS in Safari, FileVault on Mac, and encryption that’s built into iOS. We also refuse to add a “backdoor” into any of our products because that undermines the protections we’ve built in. And we can’t unlock your device for anyone because you hold the key — your unique password. We’re committed to using powerful encryption because you should know the data on your device and the information you share with others is protected.
Admittedly, I don’t program software, so I don’t exactly know quite how an operating system is built, but I can’t imagine that rewriting the portions of iOS that handle the phone’s security are particularly easy to unravel. And it’s not like you can just rip out that one part and move on with your day, I’d wager — I’m sure there’s references all over the damn place to those security frameworks, and those will also have to be removed. That’s a ton of hours of paid labor that Apple will have to foot the bill on, and despite their hordes of cash, that’s not something any company should have to deal with.
Those costs and efforts wouldn’t be incurred to help out any other customer in the world, so why anyone would see it as completely reasonable and not at all burdensome is completely beyond me. However, that’s not the strongest argument Apple’s got up their sleeve: asking them to change their code to comply with a government order is kinda-sorta unconstitutional.
Code Is Speech, You Stupid Sons of Bitches.
One of the first victories the EFF got under their belt was Bernstein v. Department of Justice, where a student at Berkeley wanted to publish an algorithm he had created, a program to run that algorithm, and a paper that explains what the crap that algorithm does.
Fact: by the end of that sentence, I no longer had to spell-check “algorithm”.
Back in the 1900’s, the government designated encryption software as a munition, because logic. This meant that Bernstein would have to submit his idea to the DoJ, register as a freakin’ arms dealer, and apply for an export license in order to publish his findings online. That, as you might guess, was some grade-A bullcrap.
The court eventually ruled that the export control laws on encryption violated Bernstein’s First Amendment rights by prohibiting his constitutionally protected speech, leading to regulatory changes that made it easier to publish encryption software online without the approval of the US government. Along the way, Judge Marilyn Hall Patel in the Northern District of California issued the crucial first ruling that found that code is speech and so is protected by the First Amendment.
This court can find no meaningful difference between computer language, particularly high-level languages as defined above, and German or French….Like music and mathematical equations, computer language is just that, language, and it communicates information either to a computer or to those who can read it…
The EFF made this argument in a blog post last October: if code is speech, then forcing Apple to change their source code to work around iOS’s encryption should be considered “compelled speech”, which they are protected from under the First Amendment. They also argue that this would violate the Fourth and Fifth Amendments, but I’m not a lawyer, so I have absolutely no idea, nor do I feel like doing the Googling required to try and make those leaps of logic by myself.
Here’s The Thing
The FBI and DoJ are being willfully ignorant and ridiculously short-sighted in this… even ignoring the other issues regarding smartphone encryption, putting Apple in this position in the United States will likely give other governments a blueprint in how to get access to encrypted, too. As TechCrunch observed, we shouldn’t get bogged down in the technical details of what needs to be done for Apple to comply with the order… it’s a question of whether Apple should be compelled to comply with the order. Personally, I think you’d have to be a complete mouth-breathing weirdo to think that the benefits of breaking iOS’s encryption outweigh the damage it could cause.
Of course, I also happen to think that 99% of the people in the United States government are mouth-breathing weirdos, so I’m fairly concerned that this is going to end poorly.