United States v. Apple: Hearts v. Minds

Many people laughed at the absurdity of the government’s pandering to the clueless, the appeal to emotion of the poor victims, the desire for safety über alles. Oh no, let’s argue about the nuances of technology, the ability of Apple, or perhaps its employees, to refuse to write code, the levels of harm that creating a backdoor will cause, both here and abroad, and how it will be used over and over, despite government hacks’ protests to the contrary.

When the response was that all of this missed the point, missed the mark of what the decision-makers would focus on, the reply was “no way.”  Meet the nice folks at Pew.

The folks over at Pew Research usually do pretty good work, but they decided to weigh in on the Apple / FBI backdoor debate by asking a really dumb poll question — the results of which are now being used to argue that the public supports the FBI over Apple by a pretty wide margin.

The appeal to safety is working, and working pretty damn well. Time to get over your love of, and brilliance about, technology.  The Pew survey was crap, asking a bad question to get a bad answer?  So what?  It reflects the public’s lack of understanding about the issue, but more importantly, the public’s priorities.

The public cares more about safety than privacy. The public cares more about not being harmed by a criminal than about the implications of breaking a technological barrier that will allow their most private information to be handed to the government for the asking. The public just doesn’t care.

Spinning law enforcement needs, no matter how disingenuous, serves to blunt the potential public outcry against the government, but it still doesn’t address the legal question posed by Mag. Pym’s warrant, or the decision that will eventually flow from Apple’s challenge.  It will relieve any public pressure that might weigh on the court’s mind, but it won’t provide a rationale.

From the Apple side, the argument remains one requiring thought, understanding and perspective.

Since challenging a judge’s demand in the San Bernardino case, which called for Apple to create a special tool to help investigators more easily crack the phone’s passcode, the company has repeatedly asserted that such a move could not be done in isolation.

“Once created, the technique could be used over and over again, on any number of devices,” Apple’s chief executive, Timothy D. Cook, said in a letter to customers. And in a note on its website on Monday, Apple said law enforcement agencies nationwide “have hundreds of iPhones they want Apple to unlock if the F.B.I. wins this case.”

Apple has long maintained that it would hand over data to comply with a court order when it was technically able to do so. In a report covering the first six months of 2015, Apple said it had received nearly 11,000 requests from government agencies worldwide for information on roughly 60,000 devices, and it provided some data in roughly 7,100 instances.

You see this as 60,000 requests to violate your privacy, 7,100 times with Apple’s acquiescence.  Those disinclined to give a shit about your concerns see this as 60,000 potential criminals to be stopped, and only 7,100 times that Apple put the safety of the public first.

Two of the foremost spokesmodels for the cause, Cy Vance and Bill Bratton, continue to push the buttons that are working so very well

At a news conference last week after the debate erupted in California, the New York City police commissioner, William J. Bratton, and the Manhattan district attorney, Cyrus R. Vance Jr., said they had collected about 175 iPhones, in investigations, that they have been unable to unlock.

Mr. Vance rejected the notion that Apple should be forced to cooperate only in certain prominent crimes.

“What we discover is that investigation into one crime often leads into criminal activity in another, sometimes much more serious than what we were originally looking at,” he said.

Forget code. Forget privacy. Forget workarounds, fault for blowing the cloud-based access. Forget everything that you think matters. The government isn’t going for thought, but for feelings. People fear crime. People hate criminals. If accessing iPhones means that the government can stop crime, solve crime, bring the perpetrators to “justice,” then you can take all your tech talk and shove it. Because that’s what they care about, whether you agree or not.

While the judges charged with deciding these cases will not be as easily swayed by appeals to the heart, they will be concerned with another aspect of this scenario that means little to you. There is a fundamental issue at stake: who will dictate the reach of a judge when it comes to obtaining evidence of a crime? Will it be Apple’s CEO? Will it be the devs? Or will it be the judge, who neither understands nor cares about where Apple thinks the line should be drawn?

The latest legal salvo against the government’s appeal to emotion is that the issue doesn’t fall under the All Writs Act, but under CALEA.

But there’s one interesting one raised by Albert Gidari that may cut through a lot of the “bigger” questions (especially the Constitutional ones that everyone leaps to) and just makes a pretty simple point: the DOJ is simply wrong that the All Writs Act applies here, rather than the existing wiretapping statute, the Communications Assistance for Law Enforcement Act, or 47 USC 1002, better known by basically everyone as CALEA.

It’s not only an interesting legal argument, but one that a judge would take to heart. That said, even if it turns out to be correct, and magistrate judges decide to rely upon CALEA rather than the authority of the All Writs Act for the government to demand anything it pleases, the question then becomes whether this will compel Congress to fix its mistake and give the government back the authority to get whatever it wants.

There is, and always has been, a basic question at stake in this battle, and one that will have vast implications for the future, perhaps the most important question that can possibly be asked about the future of privacy.  Who wins, the government contending that it must have access to evidence of crime if it’s to protect us in the future, or technology?

The public is asked to decide with its heart rather than its mind.  The court, on the other hand, is asked to concede its power to the companies that control the technology, and render itself impotent to issue orders the government deems necessary to fulfill the public’s desire for safety. Will the courts give up their authority to Apple? That’s the question.  Will the public prefer its government to use its head or its heart?

13 thoughts on “United States v. Apple: Hearts v. Minds

  1. Bartleby the Scrivener

    Terrorist attacks are a threat…I get it…but the government violating civil rights is also a threat. To my knowledge, only one of those happens on a regular basis.

    I don’t usually buy Apple products, but now I might as a simple gesture of ‘kudos’ to them.

    1. SHG Post author

      I suspect you don’t get it. Terrorist attacks (actually, any crime) causes people to be afraid. Govt invasion of privacy protects people from crime. Which of those matters more to most people? Which is more palatable to people who are disinclined to give themselves headaches by thinking? Which goes to a base emotion?

  2. Ehud Gavron

    ““What we discover is that investigation into one crime often leads into criminal activity in another, sometimes much more serious than what we were originally looking at,” he said.”

    And _THAT_ is what the Fourth Amendment was designed to prevent.

    1. SHG Post author

      Not at all. The Fourth Amendment was designed to have a neutral magistrate determine whether probable cause exists to do so, rather than allow law enforcement to search and seize without limitation.

    1. SHG Post author

      The ISPOS poll shows the difference in outcome based on the question asked. Do you see now why the government is spending so much effort to frame the narrative? And the ISPOS poll shows one other thing, that not too many seem to notice:

      TM853Y16 – Apple is opposing a court order to unlock a smart phone
      that was used by one of the shooters in the San Bernardino attack.
      Apple is concerned that if it helps the FBI this time, it will be forced to
      help the government in future cases that may not be linked to
      national security, opening the door for hackers and potential future
      Agree 46%
      Disagree 35%
      Don’t know 20%

      Despite what appears to be a strong response on other questions favoring privacy, you see the softness of the responses to this question. Don’t count on the public. They will make you cry.

  3. Christopher Best

    Maybe Apple should stop talking publicly about protecting you from the government and more about how creating what the government asks for will make it easier for criminals to steal iPhones and the data on them?

    Then again, even reasonably technically competent people have trouble understanding that…

    1. SHG Post author

      You can’t fight emotion with reason. They don’t overlap. Apple could stand to have a secondary narrative that appeals to emotion if they want to battle the government’s appeal. But fear, no matter the risk, is a hard emotion to overcome.

      1. Christopher Best

        Yeah, I was trying to come up with a fear-based argument (because I honestly am more afraid of a pickpocket being able to decrypt my phone than the FBI), but it’s so much harder to understand than “TERRORISTS!!!” it’ll probably never work…

        1. SHG Post author

          If you really want to get into the weeds of this, consider the relative likelihood of being killed by a terrorist versus dying in a car accident. There is nothing rational about fear.

  4. Fyodor

    I really hope that Apple wins, but to the extent that it comes down to a public relations battle it wont.

    Apple’s argument, that it’s a slippery slope, that there will be more and more complex and demanding requests, that forcing it to have a contingent of people regularly dedicated to undermining its security will make everyone more vulnerable, is based on long term hypotheticals. The public almost always favors the immediate and concrete (evidence related to a highly public act of mass murder) over the future and hypothetical.

    1. SHG Post author

      Watching the TV news, your point becomes painfully clear. Apple’s got no sound bite, and any real understanding requires way too much knowledge and thought to convey to most people.

  5. Pingback: Playing “Gotcha” With Privacy | Simple Justice

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