Voices of the Bar 3/3/16: Should Apple Have to Unlock the iPhone?

The role of technology in the legal world is constantly evolving, and in many high profile criminal cases, questions have come up surrounding the gathering and validity of digital evidence.  Apple’s recent filing to dismiss a court order to assist the FBI in unlocking an iPhone that belonged to San Bernardino shooting suspect Syed Rizwan Farook has triggered an intense debate on the subject. By bypassing its own security measures, would Apple set a dangerous precedent, disregarding the privacy of citizens in order for the government to collect information? Or is the company unjustifiably preventing the FBI from learning more about an attack that killed 14 people?

The motion filed by Apple states that the order violates the First and Fifth Amendments of the United States Constitution. For this week’s “Voices of the Bar” column, we’re reaching out to ask:

“Should Apple have to comply with the government’s order to create a program to unlock the iPhone?

Kent Sinclair – Sinclair Law
“No.  It is the legislature’s job to balance the benefits to our society of strong cybersecurity (including encryption) against the costs to law enforcement’s ability to obtain certain data. Congress has declined to alter the existing balance, rejecting legislation that would require technological backdoors for law enforcement.  The FBI should not be allowed to make an end run around Congress by using the All Writs Act of 1789 to force Apple to create a special version of its firmware that eliminates protections against brute force hacks.  Doing so would establish a precedent that fundamentally changes the existing cybersecurity/law enforcement balance without a public and robust debate in the legislature of the broader implications to our economy, national security, and privacy.”

David Powsner- Nutter McClennen & Fish
“Resolving Apple’s dispute with the FBI is a process.  Whether and what the answer will be remains to be seen.  Invariably it will be more than a bit messy, and it will spur years of additional litigation.  What is important is that our system permits this sort of question to be asked in the first place.”

Russell Beck – Beck Reed Riden
“I do not believe the parade of technological or other horribles that Apple has laid out. Nor do I believe that whatever privacy interests a dead person might theoretically have should supersede the need to investigate a crime (even without considering how horrific this crime was). Nor do I believe that the FBI has the right to, effectively, compel Apple to affirmatively work for the government. That said, I do believe that Apple’s position is a brilliant marketing strategy.”

Alex Rogers – Solo Practitioner
“The obvious benefits of allowing such open access by a government agency to data its citizens believe is secure and private for the purposes of national security are far outweighed by the cost such a dangerous precedent would set. Not only do we run the risk of a chilling effect on speech for fear that it may be misread, misinterpreted, or otherwise vilified by an investigative onlooker, but we also would be granting government entities a master key to a safe containing private details of citizens’ lives that in no way relates to an investigation. While I admit that there is benefit to be had by such access, I stand with Apple in saying that the cost for such benefit is far too high.”

Ellen Lubell – Tennant Lubell
“No.  If the FBI wants to access this iPhone, the FBI should develop the technology needed to subvert the phone’s security protections.  Why should the government expect Apple to do the FBI’s job? Apple doesn’t have the technology, and it purposely declined to develop the technology on the principle that customers should have a secure product. Will the government next try to force companies to reduce the security of patient medical records and home security systems so that the FBI doesn’t have to bother with the irritation of getting past those protections? This case is about the government getting control—not the Farook iPhone.”

Andrew Beckerman-Rodau – Suffolk University Law School
“Whether Apple should be made to comply is a difficult question. Compliance would help criminal investigators but that must be balanced against potential unintended consequences. Partially compromising Apple’s encryption could pose a long term security risk because encryption is utilized by the government and business entities to safeguard critical data. Weakening encryption may have short term benefits but it might also make it easier for criminals, terrorists and foreign spies to access critical encrypted data in the future.”

Christina Mott – Massachusetts Superior Court
“No.  The underlying problem with this court order compelling Apple to provide reasonable technical assistance to law enforcement to access the data on Farook’s iPhone is its basis on the 1789 All Writs Act, an antiquated statute that has not been updated since 1949.  The Act itself is extraordinarily broad in the relief it  authorizes and using it to justify compelling Apple to create a backdoor program would set a precarious, slippery precedent.  The larger, separate questions then become whether Apple has an ethical or moral duty to aid law enforcement, under certain circumstances,  in recovering data protected by their new encryption software, and whether the government can compel Apple to create new software and if so, whether specific constitutional protections can shield them from future compliance with court orders in today’s tech-savvy society where security breaches and personal-information theft have become increasingly common.  Perhaps this is the courts’ opportunity to bridge one gap in the ongoing catch-up game between case precedent and technology.”

Patrick Clendenen – Sally & Fitch
“While I certainly want the FBI fully to investigate the terrible San Bernardino killings, I side with Apple, Inc.  Balancing privacy and security in this day and age, and in the United States, will always present Americans with challenges and trade-offs. Though most people do not question the FBI’s motives, privacy trumps security here in my view, at least until Congress acts.  Like the “beyond a reasonable doubt” standard in criminal cases, denying the FBI’s request for an affirmative injunction here, which potentially limits the information available to it in the investigation, but also protects the privacy of all Americans who own an iPhone, is a trade-off of living in a free society.”

Janet Faulkner – Faulkner Legal Consulting
“Over the past week, I’ve had many discussions about this issue.  Given the potentially high security risk at stake in this particular case, I’ve found it striking that the overwhelming majority of non-lawyers with whom I’ve spoken have sided unequivocally with Apple.  If the legal question is limited strictly to the phrasing here, it is hard to argue that Apple must create a new program.  At the same time, it would be ideal if all parties work toward another solution, rather than to put heightened effort into creating more barriers.”

Gary Bloom – Law Office of Gary Bloom
“Yes, Apple should have to comply with the government’s order to create a program to unlock the iPhone. In society, there is always a compromise between privacy and security. Every law abiding citizen is entitled to both; however, criminals are already sometimes not allowed to shield themselves from culpability by hiding behind the veil of some “reasonable expectation of privacy.” Current wiretapping statutes demonstrate this. The right of the public to be secure must prevail over the criminals’ right to privacy.  Accordingly, Apple should comply.”

Ernest Linek – Banner & Witkoff
“No, Apple should not have to comply with the government’s order to create a program to unluck the iPhone. This “new” software would soon be available to hackers.”

Warren Agin – Swiggart & Agin
“The All Writs Act shouldn’t be used in this way – companies like Apple, Microsoft, Google and Amazon collect enormous amounts of information about our lives, and analyze it to help them know even more about us as individuals. This can let them build really neat and useful products for consumers. But, the whole system falls apart if the data isn’t kept secure – from everyone.”

If you would like to respond to a future Voices of the Bar, make sure you send a headshot, and contact Lauren DiTullio at lditullio@bostonbar.org.