The only thing stopping the government from getting inside a meth defendant’s iPhone 5s running iOS7 was that it was locked, and the government not only wanted it unlocked, but wanted Apple to give it up. That was the situation brought to Magistrate Judge James Orenstein.
Apple, on its part, said “no.” Yay, Apple? Not quite, since it had a history of being compliant with the government.
Saritha Komatireddy, a Brooklyn federal prosecutor, pointed out that Apple’s decision to fight this search warrant is a “stunning reversal” from the company’s cooperation with law enforcement in the past. Since 2008, Apple has received at least 70 court orders of a similar nature and complied with all of them, a sign that these are routine requests that Apple processes, she said.
Among the arguments proffered by Apple against its cooperation was that it would hurt its reputation with consumers, who (if it didn’t fight this effort) would perceive it as not protecting their privacy. Orenstein noted the curious shift of position:
Judge Orenstein did question why Apple has never tried to challenge these court orders in the past if sharing customer data with the government is so damaging to the company’s reputation. “It just seems to me there’s a dog that didn’t bark here,” he said.
The argument started with one of the founding members of the “Magistrates’ Revolt” — Judge James Orenstein — who, back in 2005, challenged another All Writs order by the DOJ. A decade ago, Orenstein pointed out that the government’s use of these particular orders circumvented both the judicial system (by granting it powers Congress hadn’t) and the legislative system (which hadn’t created statutes specifically authorizing the actions the order demanded). Nothing has changed a decade later — not even the DOJ’s continued attempts to teach an old law new tricks.
The law doesn’t provide any direct authorization for the government’s remedy, but rather to see the generic authority to do what it needs to do to accomplish its purposes by authorizing courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” whatever that means.
The second argument proffered by the government is that Apple reserved its authority to do pretty much any damn thing it pleased in its EULA, the end user license agreement, which is the thousands of words that nobody ever reads, usually on a piece of paper that’s immediately thrown out by end users. As Tim Cushing explains:
The DOJ, however, argues that while Apple may not own the phone, it owns the software — specifically, the lockscreen part of the operating system. And that’s where the government makes it most unique — and most dangerous — assertion:
Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” See “Notices from Apple,” Apple iOS Software License Agreement ¶¶ B(1)-(2), attached hereto as Exhibit C. Apple also restricts users’ rights to sell or lease the iOS Software: although users may make a “one-time permanent transfer of all” license rights, they may not otherwise “rent, lease, lend, sell, redistribute, or sublicense the iOS Software.” Ex. C, ¶ B(3). Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.
This is an extremely dangerous and problematic argument, almost laughable in the sense that any end user knew of, and agreed, to Apple’s retention of vast rights in what they thought they bought. As bad as it is, however, the government has a point. Apple can’t claim to retain the authority to do pretty much anything it pleases with the iOS as against its customer, but deny it has that same authority when responding to the government.
The fact that Apple’s devices include software, and that such software comes with licensing requirements, does not change anything. See Reply at 13-15. Apple’s licensing agreement does not establish a connection between Apple and the private data its customers store on their devices. It does not, for example, permit Apple to invade its customers’ devices uninvited or prohibit those customers from re-selling their devices to someone else absent consent from Apple. It merely places limitations on the customers’ use and redistribution of Apple’s software (limitations that are common to the industry). To hold that the existence of such a license is enough to conscript Apple into government service would be to say that the manufacturer of a car that has licensed software in it (which is increasingly the case) could be required to provide law enforcement with access to the vehicle or to alter its functionality at the government’s request.
Of course, this doesn’t quite deal with the core problem, that the EULA was crafted for the purposes of giving Apple the authority to do anything and everything that strikes its fancy at any time ever. That Apple says this isn’t its purpose in having god-like control is fine, but that doesn’t change the fact that its EULA allows it to seize a user’s first-born child.
This is the law of unintended consequences coming back to take a bite out of Apple. When Apple’s lawyers wrote up the EULA, it was intended to assure Apple of the ability to do everything it could ever want to do, and prevent end users from being able to stop it. While end users may not have read it, the government has.
Now that Apple has chosen to go with the prevailing wind and no longer serve the government on a silver platter, its own expansive EULA undercuts its denials. That doesn’t mean, as Magistrate Judge Orenstein points out, that the government has the authority to force Apple to do its dirty work, but it serves up one clear message to Apple and all other tech companies and services:
The day of EULAs giving you the authority to do anything you want puts you in the government’s crosshairs. If you don’t want to be the government’s bitch anymore (not that you didn’t enjoy it up to now), time to make sure your EULAs reflect a little more humility toward your end user.
And for the end user, maybe its time to start reading the rights you’re giving up to own the next shiny toy?