FBI vs Apple: Policy Analysis

Editor’s note: This is the second 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

Despite foreboding tales of doom associated with the potential outcome on each side, the facts of the case were relatively simple and straightforward. The underlying issue was not unique to this case, and therefore it was likely selected by the government to be the standard bearer due to the facts concerning the particular phone in question.

Apple and its allies postulated extreme scenarios to claim application of the “All Writs Act” in the case would yield a massive threat to global cyber security. The government, for the most part, focused on the single case, but this article completes the picture with analysis on the other end of the spectrum, imagining a scenario where lawlessness emerges in the wake of a ruling that would empower millions of people to ignore the effect of valid search warrants. The issue ultimately at stake is the relationship between the individual and society. As noted by then FBI Director Comey, at its root the issue is about “who do we want to be as a country and how do we want to govern ourselves.”

Delving deeper into the relationship between the individual and society, there are two classic struggles underway. First, there is the balance between liberty and security, which has traditionally been framed through political and legal debate. Second, throughout history different technologies have evolved which impact on man’s ability to interact with the environment and affect his place in society. For example, without modern agricultural the planet would only be able to sustain half of its current population. Or closer to the subject at hand, the rise of the information age has led to much greater interconnectivity and caused some to perceive the world a “global village.” The critical question is whether a ruling in favor of Apple would result in an inflection point in either of these ongoing struggles.

Fully exploring the question of liberty versus security requires going back 800 years to the sealing of the Magna Carta, described as the single most important legal document in history and the anchor for the rule of law. With Magna Carta, a new concept of sovereignty emerged where a government’s control over its subjects would be subject to limits. Centuries later, Thomas Hobbes discussed the social contract theory by which men formed governments to enforce laws and prevent the chaos of the state of nature. That theory was later refined by John Locke who saw the government’s role as protecting the natural rights of the people. These philosophies were influential in the founding of the United States with a healthy skepticism over the limits of government’s power. As described by Benjamin Franklin in 1755, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”

Prior to the American Revolution, the British Crown made use of “writs of assistance” or “writs of aid” which authorized wide-ranging searches of anyone, anywhere, at anytime without their being suspected of a crime. Despite the similar name, the All Writs Act is nothing like its earlier cousin that was loathed by the founders. Unlike the earlier royal writs, any action by the All Writs Act must fall within the parameters of the Fourth Amendment.

Another part of the social compact dating back centuries was the principle that private citizens have a duty to provide assistance to law enforcement when it is required. In a 1928 decision, Supreme Court Justice Cardozo harkened back to 13th century England noting that “[A]s in the days of King Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps but honestly and bravely and with whatever implements and facilities are convenient and at hand.” Other jurists went back even further, to before the 11th century: “The basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest.”

The independent judiciary, along with the First, Fourth, and Fifth Amendments, are all essential tools to ensure the legal process and its results will not be abused. It is precisely because of these protections that the All Writs Act can be safely employed. For centuries, men have relied on self-constrained government to respect their individual rights. William Pitt captured this dynamic perfectly years before the United States was even born:

“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

Even in the 18th Century, it was well understood that the best way to preserve individual freedoms (such as the privacy of one's home) was through reliance on the rule of law rather than attempting to create some impregnable fortress.  The citizen with the even the most meager physical barriers would be afforded the same level of protection against government intrusion as those with the strongest gates and locks.  The law was the defining factor, not the thickness of one's walls.   In modern times, the Fourth Amendment has earned similar laudations as “a wall between a free society and overzealous police action.”  The next part of this series will help explain why.

 


 

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.
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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