Eli Yokley: Apple, court system wading into new frontier – Joplin Globe

11 months ago Comments Off on Eli Yokley: Apple, court system wading into new frontier – Joplin Globe

WASHINGTON — Tim Cook, the chief executive of Apple, made a big bet when he challenged a federal court order demanding his company help the U.S. government break into an iPhone found with Syed Farook, one of the suspects in the December attacks that killed 14 people in San Bernardino.

His bet — accompanied by an oh-so-public plea to the American people — was that the pendulum of public opinion has not swung back to the 9/11-era fears that gave rise to complacency about an unprecedented era of government surveillance and data collection.

The issue of data privacy is one whose importance has grown in recent years as more people carry massive troves of data about their lives — everything from family photos to bank accounts — on devices in their pockets. During much of Barack Obama’s presidency, during which Americans became, until recently, more comfortable with their security and more concerned about their pocketbook, the privacy issue entered the political conversation.

Quietly, it has begun to boil in the courts, too. As Joshua Hawley, a Constitution law professor at the University of Missouri, told me a couple summers ago, “There is some core precedent, but this is a frontier portion of the law.”

In 2014, the U.S. Supreme Court ruled that cellphones seized by law enforcement agents before an arrest are to be protected from warrantless searches. And in terms of politics, two months after that ruling, voters in Missouri approved an amendment to the state’s constitution that enacted a similar protection from state law enforcement agents for all electronic communications, not just cellphones.

But a warrant only gives law enforcement permission to access the data. Actually doing so is another matter, as federal investigators were reminded when they tried to crack Apple’s powerful encryption code and access the data on the iPhone found after the San Bernardino attacks.

The government — which has already acted upon a warrant it received to access the data on Farook’s iCloud account — is asking Apple to build software that would let it into the phone, itself. It wants Apple to disable a function that automatically erases the data on a phone after 10 failed password attempts — software that would let the government enter infinite passwords until it got the right one.

Cook, in a letter posted online, said such software would be akin to the company building a “backdoor” to sensitive consumer data.

“In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession,” Cook said. “While the government may argue that its use would be limited to this case, there is no way to guarantee such control.”

Magistrate Judge Sheri Pym, who ruled in the government’s favor Tuesday, made her ruling based on a 1789 law that requires third-party businesses to help execute the orders of a court. Still, recent cases — such as one in 1977 involving the New York Telephone Co. — have been decided in favor of businesses if complying with them put them under “unreasonable burdens.”

What happens next will be a big moment in the privacy debate. Technology companies, still betting on consumer concerns about data privacy, are up against the government, which is betting on renewed fears about security following recent terrorist attacks and the rise of the so-called Islamic State, known as ISIS.

Rand Paul — the Republican from Kentucky who launched a presidential campaign based, in part, on personal liberty and privacy concerns — made that bet. In a race that ended up putting wind under the wings of those touting American strength and national security hawks, Paul lost and had to end his presidential campaign.

The issues set Republican primary voters used to make their decisions did not align with Paul’s. Cook — staking his legacy as the successor to Steve Jobs on the privacy issue — is making a bet that the larger American public will be with him.


Eli Yokley is a political reporter at Roll Call and a contributor to The Joplin Globe. He can be reached at EliYokley@RollCall.com and Twitter.com/EYokley.

Eli Yokley: Apple, court system wading into new frontier – Joplin Globe