Apple and the FBI must stop bickering like Congress

By Brian Greenspun (contact)

Sunday, Feb. 28, 2016 | 2 a.m.

“Every man’s house is his castle.”

Since the 1600s, this maxim has been part of both English common law and, since the ratification of the Bill of Rights in 1791, the Constitution of the United States.

OK, I get the part about my house and a castle. And I agree. But, what about my iPhone? Is that the 2016 equivalent of a 400-year-old castle?

That seems to be the issue at hand in the very public dispute between Apple Inc. and the FBI. But, like all matters of public import these days, the issue is complicated. The easy ones have been resolved long ago.

The lines are clearly drawn. The FBI, investigating the iPhone of one of the San Bernardino terrorists, can’t get the information from the phone — perhaps information leading to the next terrorist attack or to members of other terrorist cells — without triggering an automatic delete function built into the phone’s operating system.

The FBI wants Apple’s help.

Apple, which may or may not want to help, claims doing so would expose every iPhone owner to a simple way into their own phones by every bad actor or good actor on the planet. The cause of the FBI to stop the next terrorist attack is not sufficiently compelling, it seems.

So, Apple won’t help.

Hence, the courtroom battle. So far, the judge has ruled it is true that a man’s home is his castle, but the All Writs Act — which has its origins in England in 1603 — is controlling. And that means the government, on a proper showing to a magistrate, is entitled to an order commanding the action requested. Americans know the more familiar version, which is based on the Fourth Amendment to the Constitution. That is the prohibition against unreasonable searches and seizures — the operative word being “unreasonable.”

Reasonableness is presumed when a judge hears the evidence and reasons for the search and signs the order.

So, if the iPhone is the modern-day home — and there is ample evidence to conclude it is close to that, given that everything we own and hold dear is stored within its chips and processors, except our families, which are virtually contained within its iPhoto app or something like that — then the question is, What power does the government, upon a proper showing through the courts, have to obtain whatever cooperation is needed to access the information in question?

For just a moment, forget that we are concerned about evidence of a terrorist act or organization that may be exposed once that phone can be searched. By the time the courts get through with this issue, Apple will be on iPhone 8 and whatever terrorists we might have found will probably be pursuing another line of work. That’s how long it takes for justice to prevail in our court system!

So, instead, think about why we have a Fourth Amendment and why there are provisions dating back centuries that recognize our right to privacy but allow the government, upon proper showing, to obtain evidence of crimes and other nefarious activities.

And now think about a world in which our own technology companies — in the name of creating hardened, encrypted devices for our own protection — create the means for those who would kill us to hide forever their plans, conceal all their finances and criminal money trails and networks, and plot with impunity the deaths of thousands of innocent people.

I said this is a complicated issue because there are valid positions on all sides of the argument. And most of them are right!

But, and here is the simple part, we live in a democracy governed by our Constitution. And while that Constitution guarantees us substantive rights that no other country affords it citizens, among them the right to be secure in our homes and possibly our iPhones, these rights are not inviolate. Illustratively, we can start with the First Amendment — the one that says “Congress shall make no law” — to see how many laws have violated that proscription!

We have come together for centuries and agreed to live under the Constitution. That means we all give a little up to enjoy the great bounties of this remarkable and, so far, resilient democracy.

It seems we should be able to serve the ends of securing ourselves and our persons from both an overreaching government and an aggressive and overarching enemy and do it in a way that allows technology to move apace and law enforcement to move with equal vigor.

To have law enforcement and technology companies yelling at each other from either end of the hall makes no sense. In fact, it makes them look and sound like Congress. And that is no way to run a country!

Get some grown-ups in the room and figure this out, please. In 2016, we shouldn’t need to build moats of misunderstanding around our castles.

Brian Greenspun is owner, publisher and editor of the Sun.