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Apple's claim a marketing opportunity over iPhone encryption case with FBI

Paul Malone

It should be easy. The government wants to get access to the records of a mass murderer.

Who could object to that? What could possibly be wrong with granting access?

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iPhone encryption case not a 'marketing issue'

Apple is not using their encryption battle with the FBI as a marketing ploy, says general counsel Bruce Sewell at a congressional hearing in March. Vision: Washington Post

Well it has upset the privacy lobby and the cyber industry.

Syed Rizwan Farook and his wife Tashfeen Malik killed 14 people and injured 22 others in a terrorist attack in San Bernardino, California, last year.

Apple chief executive Tim Cook has vowed to resist a court order demanding it help the FBI break the password of Syed ...
Apple chief executive Tim Cook has vowed to resist a court order demanding it help the FBI break the password of Syed Rizwan Farook's iPhone. Photo: AP

Information on his relationships and activities may be on his iPhone, which was seized by the FBI during a search of a black Lexus.

The FBI quite properly sought District Court approval to get Apple Inc to assist it to unlock the phone to get access to the shooter's recent activities.

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But Apple is objecting. It is presenting itself as the great protector of everyone's personal information and says helping the government would threaten the security of its customers. "We oppose this order, which has implications far beyond the legal case at hand," Apple chief executive Tim Cook said. If Apple provided a way to gain access to the alleged murderer's phone, the technique could be used over and over again, on any number of devices, he claimed.

"In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks – from restaurants and banks to stores and homes."

Well what's wrong with that? Let's suppose that a murderer had records that could provide evidence of collaborators at his home, or for that matter in a bank deposit box.

Would we not support police being given the keys or even support the police knocking down the door to get in?

But Apple, as ever, is out to exploit this as a marketing opportunity.

The company is presenting itself as the great protector of personal privacy and mounting a scare campaign to boot.

"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."

Now the first thing to note here is that this case is public. The FBI has NOT sought to take this action secretly. Apple might have a point if the FBI had asked for access to the phone without our knowledge. But it hasn't.

Apple has been supported in its argument by Google, Facebook, AT&T, and Microsoft. No one should be surprised about that. These information technology giants have a history of wanting to keep financial records secret. They have a lot to hide. They don't want the public to know how they are avoiding and evading tax.

There is much nonsense spoken in the name of privacy. The poor have little or no privacy.

Privacy protects the rich and powerful, the criminals, drug dealers and money launderers and they go to great lengths to protect it and draw the masses in to support them.

The first court hearing on the matter ruled that the company should assist the FBI.

Apple appealed and the government has now submitted a long and detailed response to the appeal.

Contrary to Apple's claims, the government says the order it is seeking is modest, applies only to a single iPhone and allows Apple to decide the least burdensome means of complying.

"As Apple well knows, the order does not compel it to unlock other iPhones or to give the government a universal "master key" or "back door".

The government points out that the iPhone belongs to San Bernardino County, which has consented to it being searched. The phone was used by the now-dead terrorist who had also consented to it being searched as part of his employment agreement with the county.

In short, the order invades no one's privacy.

The government also points out that, after an iPhone sale, Apple maintains a continued connection to the phone and its software, giving it monopoly-like control.

As the licensing agreement buyers sign shows, Apple controls the iPhone's operating systems and first-party software, manages and vets third-party software and continually receives information from devices running its software. It also retains continued access to data from its devices about how customers are using them.

Put bluntly, Apple claims the right to monitor iPhone users, but resists helping the government seeking to track down information about a mass murderer who used one of its phones.

Apple objects to the "burden" of helping the FBI. It asserts that it would take six to 10 employees two to four weeks to develop new code to carry out the court order.

But as the government says, even if this is true it is not an undue burden, especially as the government is willing to provide reasonable reimbursement.

Apple has more than 100,000 full-time-equivalent employees and an annual income of more than $200 billion in 2015 – more than the operating budget for California. Apple's revenues exceed the nominal GDPs of two-thirds of the world's nations.

Contrary to Apple's claims, the government says there is no reason to think that the code Apple writes to comply with the court order will ever leave Apple's possession. Nothing in the order requires Apple to provide the code to the government or to explain how it works.

The arguments the government has put to the court are straightforward and easily understood by any lay person.

In contrast, last week Apple responded with a confusing statement only lawyers could have dreamt up, with sentences such as: "The authority to alter the process by which courts issue traditional common-law writs is not authority to invent entirely new writs with no common-law analog."

A hearing has been scheduled for March 22 to provide the judge with the oral arguments in the case.