Apple vs the FBI: The legal issues

In the iconic cultural battle between Apple and the FBI over the San Bernardino terror phone, from Mashable:

Farook and his wife, Tashfeen Malik, were the perpetrators of a shooting spree in San Bernardino, Calif., on Dec. 2, which killed 14 people and injured 22 others. The shooters were later killed during a gunfight with police.

The FBI thinks that Farook’s passcode could lead them to other terrorists but the iPhone phone was designed to thwart hacking attempts.

The judge’s order instructs Apple to write custom software, called a “Software Image File,” to bypass these security features so the FBI can quickly test an unlimited number of passcodes until it finds the right one. Once that as-yet-uncreated software is installed on the phone, security experts say it would take no more than a day to find the code.

News of the order triggered fierce debate last week as technologists wondered whether Apple can, as a matter of technical ability, comply with the demand, while privacy advocates said engineering such software could have dangerous security implications. Legal experts said it raises constitutional questions about how far the government can go when conscripting private, third parties to assist with law enforcement.

Legal experts told Mashable that whether the AWA applies may be a key issue in the San Bernardino case, because Pym’s order doesn’t just force Apple to give agents access to its information, tools or facilities — it requires Apple to create something new altogether, which Apple has said exceeds the scope of its business.

“That’s uncharted territory,” said Valerie Barreiro, a law professor at the University of Southern California.More.

Reality check: That territory will surely be charted. Two thoughts for now: So the FBI is taking an interest in suppressing terrorism, instead of th more usual government gambit of suppressing people who are concerned about it? That’s good news for potential victims, but the fact is, if ordinary surveillance methods had been routinely used instead of avoided in the last fifteen years, the FBI would not now be asking for the right to major incursions into citizens’ privacy. Second, does anyone really believe that the FBI would not take many more nuggets out of such a gold mine of personal data on, say, non-violent dissenters against treasured progressive causes?

See also: Privacy crunch: Apple vs. the FBI How much do we value privacy vs. government’s stated desire to protect us?