FBI vs Apple: Context from a cyber law perspective

Editor’s note: This is the first in a five-part series on this topic. This examination by Arnold Abraham provides insights and nuanced lessons from history, the law and the tech world that can inform all of us interested in both privacy and security.-bg

In August 2017, Apple CEO Tim Cook declared “we obey the laws where we do business,” explaining his decision to adhere to the Chinese government’s demands to remove access to privacy enhancing applications. It was an interesting twist given the vociferous campaign that the company and its allies waged against the U.S. government last year. It’s worth taking a closer look at what really happened in the case of Apple vs. FBI and why it still matters today in the ongoing struggle between privacy and security.

An astute observer may have predicted the battle would emerge more than 30 years ago. In 1984, Apple was a relatively new and small company trying to break into a market dominated by IBM. They threw down the gauntlet with the most famous Superbowl commercial in history, portraying Apple as the champion of the people who are oppressed in an Orwellian version of society. The message that Apple’s technology empowers individual freedom continues to this day even, though the company now dwarfs its competitors.

 

The new plot line involves the United States government, represented by the Federal Bureau of Investigation, attempting to strong-arm Apple into becoming an unwilling accomplice in the rise of the police state the company has warned about. The issue rose to national prominence in early 2016, when following a domestic terrorist attack in California, the FBI sought to compel Apple’s assistance in accessing the attacker’s Iphone. The two sides geared up for a massive legal battle, but the matter resolved itself when the FBI found an alternative method to access the data they sought. The fanfare regarding the particular case died down, but the underlying controversy remains unsettled.

The question remains - whether or not the government can force a cell phone manufacturer to provide assistance in bypassing its own security measures to access information on the device. To find an answer, one can either conduct a detailed analysis of case law to predict an outcome, or consider the broader policy implications as a divination of the result.

Because many of the legal arguments pertain to the specific controversy, the detailed review of the pleadings of the 2016 case will be covered in a later discussion. The focus here is on the underlying policy issues that ultimately must prevail as society decides how to adapt to the new reality of widely available strong encryption technologies that can defeat valid search warrants. Two overall contexts are considered – the classic struggle between liberty and security, and the emerging tension in the power dynamic between the nation-state and the individual based on technological developments.

At its core, the question behind the clash of the titans was what should happen when a private company’s encryption prevents the government from accessing information which it has a legal warrant to obtain.  The sense of urgency put forth by many of Apple’s supporters was well founded, but for reasons opposite to their ultimate positions. Indeed, the world stands at fateful crossroads. The path must be carefully chosen and as the next article in this series will show, we are fortunate to have the wisdom of our nation’s founders to guide us.

 

Arnold Abraham

Founding Partner at CyberLaw Group
Arnold Abraham, Esq. is Founding Partner of The CyberLaw Group where he focuses on litigation and mediation of disputes in cyberspace.He previously served as a senior executive level civilian in the DoD, Department of Homeland Security, and Office of the Director of National Intelligence. He has been one of the thought-leaders in the field of cyber warfare since the late 1990s and was recognized by the CIA with the National Intelligence Medal of Achievement for his groundbreaking analysis.

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About Arnold Abraham

Arnold Abraham, Esq. is Founding Partner of The CyberLaw Group where he focuses on litigation and mediation of disputes in cyberspace. He previously served as a senior executive level civilian in the DoD, Department of Homeland Security, and Office of the Director of National Intelligence. He has been one of the thought-leaders in the field of cyber warfare since the late 1990s and was recognized by the CIA with the National Intelligence Medal of Achievement for his groundbreaking analysis.

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