Latest in All Writs Act
In episode 109, we interview Perianne Boring of the Chamber of Digital Commerce on the regulatory challenges of bitcoin and the blockchain. In the news roundup, we bring back Apple v.
Yesterday, the Department of Justice filed a motion to vacate a hearing previously scheduled for today on whether Apple can be compelled to unlock the iPhone of Syed Farook, one of the shooters in the San Bernardino attacks.
The very public fight between Apple and the FBI over the last six weeks has not only reinvigorated the broader debate over the “going dark” concern (and the larger, age-old tension between privacy and security) but has also drawn attention to the specific legal question of just how much power current federal law (in the form of the All Writs Act) confers upon judges to compel private persons and companies to take affirmative steps to help the government execute a duly-issued search warrant.
What follows below is the second in a series of primers for those who are interested in the continuing fallout from Apple’s decision to resist government requests for technical assistance in overcoming passcode protections on iPhones. The first one used a FAQ format to provide an outline of (and context for) the key points in Apple’s brief last week in the San Bernadino iPhone case.
Do you need to get up to speed on the latest developments in the Apple vs FBI iPhone dispute, but either lack the time to read the brief Apple filed yesterday or the context to decode it? I’m here to help, in FAQ format:
1. I need some context. How does this litigation relate to the larger “going dark” debate?
Note to Apple: As a general matter of strategic communications, following the words “We have no sympathy for terrorists” with a “But” generally means you’ve gone badly off message—even if you wedge a few sentences in between.
Unless you’ve been living in a cave, you already know by now that a federal magistrate judge in California has issued an order to compel the technology giant to provide technical assistance to the FBI in unlocking the iPhone of one of the San Bernardino mass shooters.
When I first read the court order in the San Bernardino case, I thought it was reasonable, as it is both technically plausible and doesn't substantially impact user security for most people. Even if Apple's code escapes it only compromises security for those who have a weak passcode on an older phone which is then captured by an adversary.
“Going Dark” is really two separate, if related, debates. Apple is looking to be the voice of the tech industry on both. The problem is that the company can’t seem to keep its story straight, and it is adopting divergent and incompatible positions in the two.