Didn’t see this coming.
— Jim Tyre (@TyreJim) March 21, 2016
But this was a given.
Federal court in Calif. has canceled tomorrow’s hearing on the FBI’s request to force Apple to unlock an iPhone. pic.twitter.com/IoS4y3IBOr
— Brad Heath (@bradheath) March 22, 2016
And Magistrate Judge Sherri Pym, rather than question what the hell was going on, gave the government what it asked for. Ex parte, mind you. Because it’s the government and what mag. doesn’t want to get a hot potato like this off her hands? Who can blame her?
So what does this mean? Given the intense interest, the significance of the issue at stake, and scope of involvement of amici, there is good, no, excellent, reason to wonder.
At Volokh Conspiracy, Orin Kerr offers his take.
If the government can access the phone through a third party’s alternative, however, then this legal challenge goes away without a ruling. If that happens, neither side will look good in the short term. The FBI won’t look good because it went to court and claimed it had no alternatives when an alternative existed. The whole case was for nothing, which will raise suspicions about why the government filed the case and the timing of this new discovery. But Apple won’t look good either. Apple claimed that the sky would fall if it had to create the code in light of the risk outsiders might steal it and threaten the privacy of everyone. If outsiders already have a way in without Apple’s help, then the sky has already fallen. Apple just didn’t know it.
There’s an implicit trust in the government’s allegations here. While Orin shows some skepticism, notably by his putting the word “can” in italics, he goes on to discuss how this would reflect poorly on both sides, Apple as well as the government.
Is it possible that the government’s assertion is true? That after all that has happened in this circus, it can access the iPhone without Apple’s cooperation? Of course. Kinda ridiculous for the government to have gone this far down the road before it came to such an epiphany, but it’s possible. Like space aliens.
But still, Orin’s skepticism is limited by an inexplicable faith in the government’s honesty, that it wouldn’t claim to Mag. Pym that it has an alternative if it didn’t. Notably, there is no commentary from the perspective of “what if the government is totally full of shit, lying through its teeth and doing this to try to salvage its dignity given that neither the law nor public opinion is backing the government up.”
In the interest of balance, I sacrifice myself on the altar of skepticism. I call bullshit.
This was never a case about what the government needed to unearth on the San Bernardino iPhone because they needed to stop the terrorists. There were other phones, trashed, that might have held secrets, but not this phone. Way too much time has elapsed already to make anything (not that there is any reasonable belief that anything would be found) worthwhile. Anyone who could potentially be revealed has had enough time to take a cruise around the world and still go into hiding from the government.
No, the “need” to get into this iPhone is nonsensical.
So why then start this dog and pony shitshow? Glad you asked. This was the scenario the government was waiting for to have its showdown with technology. All tech, not just Apple. The stars aligned, the facts were as favorable to the government as they were going to get, the appeal to fear and safety would never be stronger. Mass murder by terrorists on American soil. It wasn’t going to get any better for the government than this, and so the government decided that this was where the battle would be fought:
Personal privacy versus the government’s ability to protect Americans from terrorism.
They pulled out all the stops. They called in every handsome, sincere, serious dude in law enforcement. They went on TV to tell us how much they love us, and how they were doing this for us. Don’t we want to survive? Don’t we fear the terrorists? We can’t let the terrorists win. Love the government. Trust the government. Would we lie?
Except it didn’t work. At least, not enough to be certain that they would prevail before the two courts that mattered, Mag. Pym’s and the court of public opinion. That they blew it before Mag. Orenstein didn’t help, but the case before Mag. Pym was in the center ring, the big show, winner take all.
Is this right? Is this cynical? Is this crazy? Maybe. Maybe the government is telling the absolute truth, that they inexplicably suddenly discovered a flaw and are now about to exploit it. After all, it’s technology, and flaws seem to be the only consistent thing that permeates all of it. Oh wait, flaws and shiny. I forgot about shiny, which is what blinds us from the flaws.
But if there is anything less trustworthy than technology, it’s the government’s claim that it’s only here to help, and we can trust the government to never abuse its power.
Will we know which it is? Will we know if there really is a flaw in Apple’s security that the government can now exploit, or that the government is full of shit and trying to save face by taking its motion off the table? A damn good question.