The ridicule was all over the twitters, as word spread that a judge ordered Apple to unlock an encrypted iPhone. It was particularly ironic, given that the people mocking the order had it wrong. At Techdirt, Mike Masnick explains.
So… have you heard the story about how a magistrate judge in California has ordered Apple to help the FBI disable encryption on the iPhone of one of the San Bernardino shooters? You may have because it’s showing up everywhere. Here’s NBC News reporting on it:
A federal judge on Tuesday ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, assistance the computer giant “declined to provide voluntarily,” according to court papers.
Many people are now mocking this ruling, pointing out that with end-to-end encryption it’s actually impossible for Apple to do very much to help the FBI, which makes the order seem ridiculous. But that’s because much of the reporting on this story appears to be wrong.
So if it’s wrong, what’s right?
[T]he order does not tell Apple to crack the encryption when Apple does not have the key. Rather, it is asking Apple to turn off a specific feature so that the FBI can try to brute force the key.
Completely different. And at the same time, maybe not different at all. When the issue of cellphone privacy was all the rage, and the geeks were screaming that they had a simple answer, encryption, and there wasn’t a damn thing the courts could do about it, I tried to explain that as much as they understood code, they were clueless as to how the law worked.
I explained that a judge, faced with tech impossibility, would just order that it happen. Like ordering the sun to rise in the west, the law doesn’t recognize technological capability or impossibility. The judge orders an outcome and it becomes a party’s problem to make it happen. Can’t be done? Courts enforce the laws of the United States, not the laws of physics.
So Magistrate Judge Sheri Pym did not order Apple to crack the encryption, but instead ordered Apple to disable a feature that would wipe the drive after 10 bad tries at entering the encryption key, so that the government could go the brute force route. Don’t all you twitter mockers feel bad now? Well, don’t put on your hair shirts yet.
Apple’s reasonable technical assistance shall accomplish the following three important functions: (1) it will bypass or disable the auto-erase function whether or not it has been enabled; (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port, Bluetooth, Wi-Fi, or other protocol available on the SUBJECT DEVICE and (3) it will ensure that when the FBI submits passcodes to the SUBJECT DEVICE, software running on the device will not purposefully introduce any additional delay between passcode attempts beyond what is incurred by Apple hardware.
If Apple determines that it can achieve the three functions stated above in paragraph 2, as well as the functionality set forth in paragraph 3, using an alternate technological means from that recommended by the government, and the government concurs, Apple may comply with this Order in that way.
Not only does the court order Apple to make the sun rise in the west, but it tells it how the sun should rise, and then, if the sunrise protocol fails to meet the government’s requirements, allows Apple to politely seek the government’s acquiescence. When the order says, “and the government concurs,” what are the alternatives should the government reply, “nope, a Tequila sunrise or you’re going to jail, Apple”?
It’s not like Mag. Pym is an uncaring Luddite, of course, as she does sit in the Central District of California.
To the extent that Apple believes that compliance with this Order would be unreasonably burdensome, it may make an application to this Court for relief within five business days of receipt of the Order.
Whether the demands of the order are technologically feasible is one issue. Apple has refused to comply with the government’s “request” voluntarily, and so the government made Mag. Pym work, work, work. It puts Apple in a difficult technological spot, as the confluences of various factors clash. Maybe Apple can do it. Maybe they can’t. Maybe they don’t want to. Maybe they don’t want to find out. Maybe they want to make sure it doesn’t happen, even if it can be done, because Apple doesn’t want to give the government a way to break into an iPhone, either through the front door, back door or side door.
From the government’s perspective, as well as the court’s, it doesn’t give a damn what Apple wants. It wants in because that’s what the government says is critical to whatever hyperbolic claim of saving lives from terrorists it spouts. And from the government’s point of view, that’s its job. And the government gets what it wants.
But who made Apple an adjunct to law enforcement? Apple didn’t commit any crime. Apple didn’t shoot anyone. What does Apple have to do with any crime in the first place? Yet, the subtext of the order is that Apple, the maker of the encrypted phone, can be made a slave to the government’s demands, and that the Magistrate Judge has the authority to order a business, unrelated to the commission of any crime, to spend its time and money, expend its devs’ efforts, to comply with its order, upon pain of contempt. Why?
The question should not be whether it’s “unreasonably burdensome” for Apple to comply with the order, but whether Apple should have to lift a finger at all. If Apple chooses not to voluntarily become a division of law enforcement, and has done nothing criminal, then what authority does a court have to make it a slave to the government’s demands?
Of course, the law’s answer is that when the government says it really, really needs a private company to do its bidding, then that’s what it must do. It’s not that the geeks were wrong from a principled position that it’s crazy that the government can turn a tech company into a slave to the government’s demands, but that they don’t get how the law works.
Precedent says that the government can do this, and so it can. How unreasonable and ridiculous you think it may be is no longer the issue. Welcome to the law. Now get it done, bitches, and stop all your whining. You’ve been ordered.