Behind the scenes I have received a lot of interesting comments to the position I have thus far taken on the D.O.J. v Apple case. In this post, I thought I would share some of them.
Encryption and Economic Competitiveness
Close readers might recall that a year ago November, I had an audience with F.T.C. Commissioner Terrell McSweeny to discuss Google’s abuse of student privacy. It was therefore of note for me to learn that Commissioner McSweeny spoke out recently in vigorous support of encryption. Politico reported that she swept by the Apple case and spoke in general terms touching on privacy, innovation and global economic competitiveness and specifically rejected a “back door” policy for government.
I couldn’t agree with her more! And I am glad that the Obama Administration (she is a particular mentee of Vice President Biden) put her out there to make the case in favor of encryption for precisely the reasons that she proffered. What does it say about the Apple case specifically? Nothing. But that is important in itself, because the maelstrom of debate over this case has caused for hyperbole based on wide-range assumptions. To favor the D.O.J. does not mean, as some would have it, encryption, innovation and economic competitiveness are unimportant. I support all of those qualities vigorously.
The F.B.I. wants Apple’s Code
I pondered this question considerably until I spend the four hours watching the Congressional hearing. From that source, I learned more precisely the technical process to be used in this case. Apple retains physical possession of the phone. With Apple disabling the encryption key, the F.B.I. would send brute force code electronically. That process preserves Apple’s propriety control and eliminates the concern that the government would have access to the code.
Many supporters of Apple claim that this case can be used as precedent, which is true, and that the precedent is tantamount to a back door, which is not. Precedent is precisely how our common law system works. But precedent is not tantamount to an open floodgate. It is important to remember that the precedential effect of case before it is decided means that it can go both ways. If Apple prevails, the supremacy of technology and evidence free zones potentially will have precedential value going forward. If it loses, it means that every case will be litigated on its own merits. And if that means that like cases will provide access, that result seems consistent with our law since the founding of the republic.
Due Process in a Federal Structure
Due process in a federal structure means that every new iteration of facts will have to be litigated on its own merits and that jurisdictions may differ on the results. An appellate process allows for more time and thought by many actors to consider the legal issues. A conflict among jurisdictions, circuit courts especially, is a prescription for Supreme Court review. If Apple loses, it is almost certain that they will appeal. If Apple wins, the “precedent” against which Apple supporters have been raging will suddenly become their new best friend.
Had the F.B.I. not prompted the D.O.J. to bring this case, technology would “win” by default. In practice, that means that virtual authority would rest in a very powerful entity: the most capitalized corporate entity in the world, Apple, Inc. By bringing the case to court, it brings the issue and its underlying power into the public sphere. Reader, here is where we may disagree, but this is the proper locus of such an important issue. The integrity of the U.S. legal system and respect for a democratic republic rests on it. Technology, in the form of Internet corporations, has been so long in the lead that we may have assumed the default. It is time now to right the balance.
You Support Microsoft in the U.S. v. Microsoft Case, Why Not Apple?
The Microsoft case is about a legal issue of jurisdiction. It implicates an existing but antiquated law, the Electronic Communications Privacy Act (ECPA). The U.S. has legal process for procuring electronic-based evidence on domestic soil, and for procuring material forms of evidence in foreign countries, but it does not have law on procuring electronic-based evidence on foreign soil. The Microsoft case asks precisely this question. Microsoft has pushed back on the Department of Justice to be sure that it acts in a legal manner. What is the correct legal process by which to procure electronic content when it sits in a foreign country? Until such time as Congress amends (ECPA) or creates new (the LEADS Act) law, Microsoft is in effect asking the courts to legitimate the D.O.J.’s request … or not.
A creative lawyer might observe that the Apple case is about jurisdiction too, but only in a metaphorical sense. Everything else about this case lives comfortably in existing domestic law (including the writ, see below). The metaphorical jurisdiction is whether software is outside the scope of U.S. law? It has not been historically, and there is no reason why it should be considered as such now. To do so would be to create for the first time in U.S. law an “evidence free” zone. For reasons I describe below under Rule of Law, that would be the wrong decision.
Of all the claims that Apple makes in its defense, including free speech, jurisdiction is not one. Law cannot be expressed metaphorically. Take away public hyperbole from the Apple case and the core legal question is whether the government can ask Apple to adjust its code to allow access to potential evidence. Although both cases share an interest in Congressional action that has yet to take place surrounding novel technology questions, the legal issue in the Apple case is a very different from Microsoft. Hence, my support of Microsoft and my support of the D.O.J. in this case is consistent.
Old and New Law
The brouhaha that some have made of the D.O.J.’s use of an 18th century writ is revealing. In a country culturally beset by youth and innovation, the 18th century might seem ancient, but in U.S. law it is not. Not coincidentally, the U.S. Constitution was ratified in the same year as Congress promulgated this law. The Writ is the kind of essential tool that a society based on law must establish under the doctrine of police power in the name of ordered liberty. In times and areas where Congress has failed to act, the writ is a natural fall back for the government to grab from its criminal procedure tool box.
Let’s reflect on the failure of Congress to act in this area. It is not ECPA, but the Communications Assistance Law Enforcement Act (CALEA) to which we look. Back in the oughts’ when this law was last revised to affect Internet Service Providers (ISPs), higher education expended a lot of effort. The American Council on Education (ACE), relying heavily on expertise once located in EDUCAUSE’s erstwhile Policy Office, successfully brought a case to qualify the circumstances in which the law applied to campus ISPs. Why did ACE, which does not frequently bring actions to federal court, act? For two reasons primarily. First, because in most cases, campus ISPs, while autonomous from telecommunications companies legally, could argue that commercial ISPs could technically manage the necessary fix. Second, the fix was very costly. If redundant to the purpose, why should higher education have to bear the expense? The court ruled that higher education did not have to comply with the ISP amendments to the Act so long as the configuration and business model of their networks were not in conflict with the reasons for the fix.
As is noted in the CALEA example, the government has often asked a great deal of telecommunications companies. They frequently bear tremendous expense complying with laws, writs, warrants and subpoenas. Whole rooms within ATT and Verizon, among others, are devoted to the technical underpinnings of electronic surveillance, in particular after the events of September 11. Having written (no, screamed) over the potential and real illegalities of this surveillance under the Bush Administration, and especially in the period from 2001 to 2008 before Congress amended FISA in favor of the government – and gave telecommunications companies legal immunity in the process – I will not repeat myself here. Moreover, those wails are not here the point. The point is that the threshold for “undue burden” in a general sense is very high.
To be sure, Congress must amend CALEA to regulate Internet companies in the same way that it amended telephony law a decade ago to incorporate ISPs in terms of legal access. From this perspective, Apple’s pushback is to be applauded. Apple, other Internet companies and the public all deserve clear law. Until such time, however, the F.B.I. and Internet companies will have to operate on a case by case basis. A factual question remains as to whether a code fix to disable the encryption key is an undue burden on Apple to accomplish. I am not competent to say but my educated guess talking to those are is that it is not. Let’s see what Apple, F.B.I. experts and others finally come to say on this point.
Rule of Law
Rule of law is perhaps the most fundamental principle of our country. To be included in its benefits, such as a free market, free speech, privacy and civil rights, means that no one, no one industry, no one aspect such as technology, is above it. Rule of law is never perfect, but we rely on it as the foundation for ordered liberty and thus the stability upon which our country rests. We accept its imperfections because it is an ideal against which the vagaries of human nature exist. When imperfect, the very principle of it creates the ground upon which we can make a fix. Thus, when some have observed that the wrongs committed by the Bush Administration render the U.S. government an untrustworthy steward of information in this case, they direct their right to call for reform in the wrong place. Defending Apple will not fix those wrongs. When critiquing other nations, it is the alpha and omega of our assessment. How could we possibly raise a word against, say, the People’s Republic of China for its arbitrary and capricious actions against dissidents if we start down path of arbitrary and capricious carve outs for ourselves?
If the court finds an undue burden in this case, and then Congress acts, that is appropriate. So is the reverse. What concerns me the most are the arguments that suggest that technology is outside the law, or that evidence zones of absolute protection exist. That simply cannot be true with our principles of justice. If this case is the touchstone to greater civil involvement on the part of everyone interested in it, then it may be the blessing in disguise for which we have been waiting to get the public involved in having Congress act. That the United States has had a rule of law since the year of this particular writ is not cause to invalidate but rather a reminder not to take the law for granted. Its preservation is something for which over and over again our country has fought from righteous Revolutionary Wars to our tragically misguided engagement in Iraq. Observers of the relationship between technology and law have long noted the emergence of the Internet has it out of sync. We have been waiting a long time for this moment. Now that it is here, let’s do it.
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