Apple hissy fit about money, not principle

By George A. Nation III

Apple's reluctance to cooperate with the government in its investigation of Syed Rizwan Farook, one of the San Bernardino shooters, is motivated by concern for its reputation and ultimately for its sales. Put simply, it's a matter of money. Apple will and should lose this battle with the government.

Any business, including Apple, that can provide information relevant to a criminal investigation will and should be compelled by the government to do so. The All Writs Act specifically gives the government this authority. This is the law that a democratic society has made, and the interests of a relatively few shareholders cannot outweigh the common good.

No digital information is truly secure; it is not a question of whether it can be hacked but only a question of when, as digital security experts tell us. So the data in question on Farook's phone is not truly secure to begin with. If Apple can access the information, then others can too. Moreover, whether Apple develops the software or not, if it can be developed, it will be, if not by Apple then by someone else.

Yes, Apple is a private company. But in a democracy, all citizens and companies have a duty to assist in the enforcement of the laws.

Apple, thanks in innumerable ways to the democracy in which it exists, created a successful product and incorporated encryption technology to protect the privacy of its customers. But it has no right to protect the privacy of its customers once a court has issued a warrant allowing a search of the phone.

The Fourth Amendment, which was adopted, along with the rest of the Bill of Rights, just after the All Writs Act was approved by Congress as part of the Judiciary Act of 1789, provides a right to be free from unreasonable searches and seizures but not a right to be free from all searches and seizures. Once a valid warrant has been issued, the right of privacy ends. Apple, like any other citizen, has an obligation to assist the government in any way that it can to implement the warrant.

Moreover, the burden placed on Apple to write the software necessary to overcome its own encryption is a direct result of Apple's own conduct in designing the encryption in the first place. It is certainly foreseeable that products like the iPhone, which has many useful purposes, will also be used in some cases for illegal purposes and therefore will contain information that the government will have a right, for the good of all, to access.

Apple did not design the encryption features of its phone for an altruistic purpose such as furthering democratic values; it designed this feature, as it is obligated to, in the interests of its shareholders' profits. That is, Apple's phones are encrypted because encryption allows Apple to sell more phones.

No doubt its very public hissy fit over FBI Director James B. Comey's demand that it do its civic duty is designed to set the stage to allow it to sell even more of its new phones, which it will likely tout as encrypted beyond even Apple's capacity to breach.

As noted, no digital data is truly secure, and we would all do well to realize that before we decide to store sensitive information on our digital devices. In fact, in our democracy, we the people have decided that no information subject to a valid warrant is beyond reach.

We have, in the Constitution, provided for the protection of our privacy in the process required to obtain a valid warrant. We should not allow technical brute force to frustrate the government's legitimate efforts to solve crimes, especially crimes as reprehensible as terrorism.

George A. Nation III is a professor of law and business at Lehigh University and is of counsel to Maloney, Danyi, O'Donnell & Tranter in Bethlehem. gan0@lehigh.edu.