Against the FBI, Apple shows the heart and soul of a corporation – Deseret News

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The FBI blinked. After insisting that Apple engineers were necessary to break into the iPhone of one of the San Bernardino terrorists, the government found another way. It told the magistrate judge: Never mind.

In abandoning its lawsuit, the country has avoided a very dangerous court ruling that might have ended up compelling business executives to act contrary to their interests, to their customers’ interests and to their sincerely-held beliefs.

What was at stake in the battle over cracking the iPhone? Under our system of law, police and intelligence officials may not legally search private data indiscriminately. Indeed, the Constitution declares the right “to be secure in [our] persons, houses, papers and effects, against unreasonable searches and seizures.”

In this case, the iPhone belonged to gunman Syed Farook, the terrorist suspect charged in the Dec. 2 massacre. There was no privacy issue here. Evidence of wrongdoing permits law enforcement to get any and all information it needs.

Apple had already cooperated extensively with the FBI. In his widely-circulated message to customers on Feb. 16, Apple CEO Tim Cook noted: “Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal.”

But the FBI demanded something much more. It wanted to commandeer the minds of Apple engineers, forcing them to design a new software program to hack into the company’s own security systems.

Decades ago, cryptography was largely within the province of spies and espionage. But advancing computational power has made it standard operating procedure in the digital age. As with almost all companies, Apple uses the best encryption tools it has available to help safeguard what are now our “papers and effects.”

Indeed, one of the technology companies supporting Apple in its legal battle filed a friend of the court brief citing privacy experts Peter Swire and Kenesa Ahmad: “Encryption is the norm, not the exception, and is used in innumerable ways — from protecting critical public infrastructure and sensitive personal information, to securing communications and commercial transactions.”

Congress has previously debated whether law enforcement could require tech companies to build “back doors” into their hardware and software systems. The keys to those doors could then be unlocked upon request by law enforcement.

Tech companies like Apple, Intel and Microsoft have long insisted that back doors lead to more crime, not less. They would make it easier for hackers to access data and to steal intellectual property.

The Communications Assistance for Law Enforcement Act of 1994, specifically barred the FBI and the NSA from such back door access. CALEA simplified the process for law enforcement to obtain digital wiretaps and pen registers. Yet in its legal briefs, the government cited CALEA — and the 1789 “All Writs Act” — as a rather far-fetched means to compel Apple to render it aid.

Magistrate Judge James Orenstein in the Eastern District of New York, in a very similar iPhone cracking case, shot down the Justice Department’s reasoning: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about Congressional intent in 1789 — as to produce impermissibly absurd results.”

Nor is law enforcement alone in its efforts to force businesses to come do their bidding, in their name. The Apple-FBI dispute over one compelled technology mandate reminded me of another battle, 15 years ago, by Hollywood to force Silicon Valley to come up with anti-copying “policeware” that would detect and thwart acts of copyright infringement by computer users. The effort was dropped as entertainment companies began to adopt encryption on their own.

What the FBI was seeking from Apple was far more than merely rendering assistance. It was an attempt at involuntary servitude: Forcing engineers to use their minds and their energies to undermine the company’s core approach to security and privacy.

As Apple said in its own legal brief: “This amounts to compelled speech and viewpoint discrimination in violation of the First Amendment.”

No one can deny that Apple, like any good corporate citizen, can and does collectively ascribe to a set of deeply held beliefs. As the Supreme Court recognized less than two years in its Burwell v. Hobby Lobby decision, corporations are capable of exercising rights of conscience.

Forcing an engineer to design a particular type of software tool is no less compulsory than requiring a baker or a wedding photographer to use his or her labors to celebrate a same-sex marriage of which that individual, or corporation, does not endorse.

Indeed, one might say that Apple’s battle with the FBI has demonstrated just how much of a heart and a soul a corporation can have in standing up for its own freedom of conscience.

Drew Clark is of counsel at the law firm of Best Best and Krieger, where he focuses on technology, media and telecommunications. Connect on Twitter @drewclark or via email at

Against the FBI, Apple shows the heart and soul of a corporation – Deseret News