Friday, February 26, 2016

#57 / Not Above The Law

Senator Dianne Feinstein
An article ran in the San Jose Mercury News, yesterday, February 25, 2016, based on reporting from the McClatchy Washington Bureau. The Mercury article carried this headline: 

Feinstein: Apple not above the law

Speaking for myself, I would hope not! I would hope that no one is above the law (including United States Senator Dianne Feinstein).

Allow me, however, to suggest to the Senator, who was referencing Apple's refusal to reengineer an Apple iPhone, that there is actually no "law" that says that Apple has any such obligation. This article, by Irina Raicu, who is Internet Ethics Program Director at the Markkula Center for Applied Ethics at Santa Clara University, properly explains the legal situation.

The Senator seems to think (as a federal official) that if the federal government wants a person to do something to help the federal government, and if the government can get a judge to agree with the government, then the person approached by the government has an actual legal obligation to do whatever the federal government wants and demands. This is not, however, the "law," and is, in fact, totally contrary to the basic foundations upon which our democratic government is based. The government has only limited powers. It doesn't have the power to order people around at the government's convenience, and to tell people that they have to do whatever the government wants, whenever the government decides it wants them to do something.

The case under discussion is not a case in which Apple has possession of any evidence whatsoever that might have some relevance to the government's investigation of the terrorist attack that occurred in San Bernardino, California in December of last year. If that were the case, a properly executed search warrant could impose a legal obligation on Apple to turn over evidence in Apple's possession. However, that is not actually the situation. What the federal government wants is truly "extraordinary," in both a legal sense (an "extraordinary writ" is involved), and in the usual meaning of the word.

The fact that the phone used by the terrorists was manufactured by Apple does not make Apple complicit in their crimes. The phones that Apple makes, and sells by the millions, will not reveal their data to someone who doesn't have the password. That's true of every late-model iPhone. Apple isn't hiding data. Apple has no connection to the data, or to the phone, which was apparently sold to the County of San Bernardino, and then used by those who made the terrorist attack. The federal government's assertion is that since the government now wants to look at the data on that phone, Apple must figure out how to make it available. 

Let me repeat. There is no "law" that says that anyone has to go to work for the federal government, to help the government do whatever it wants to do, whenever the government wants them to do it. And that is what is going on here. The government has decided that Apple could help the government get information that the government wants, and so the government is trying to compel Apple to work for the government to achieve the government's objectives. 

Apparently, the federal government is asserting that it has the authority to issue such a directive, based on provisions in the All Writs Act, originally enacted in 1789. The relevant language reads as follows:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

Apple, and I think quite properly, is contesting the idea that "the usages and principles of law" require it to reengineer its phones, once sold, when the government tells the company that reengineering the phone might help the government uncover evidence.

Suppose I were a crack computer guy who really knew the technologies involved in encryption. Could the federal government order me to work on the phone? If the government can force Apple to do that, it could force anyone to do that. And if the government can force Apple to work to decrypt one phone, it is clear that it can also force Apple to work to decrypt other phones, too!

Maybe, the Supreme Court will ultimately decide that the federal government can, with a court order, tell anyone to do anything that the government decides would be helpful to deal with crime, or terrorism. There was a government that asserted that sort of power, once. The government of Great Britain made that claim, and British courts issued "Writs of Assistance," which essentially did exactly the same thing that the federal government is now claiming that it can do in this case involving Apple.

The result of Great Britain's assertions was the American Revolution. 

Would Dianne Feinstein have been a Tory?

It sure looks like it!

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