Old Writ, New Age: What Apple’s FBI Fight Reveals About Outdated Privacy Laws

At Apple’s press conference on Monday, CEO Tim Cook reinforced the company’s position against creating a backdoor into iOS that would allow the FBI to access the data on the iPhone that belonged to one of the San Bernadino shooters.

“We didn’t expect to be in this position at odds with our own government, but we believe strongly that we have a responsibility to help you protect your data and to protect your privacy,” Cook said.

The statements come after weeks of fierce debate between Apple and the government, a fight that was scheduled to be heard in California courtrooms on Tuesday but was put on pause while the FBI tries out a hack it seems confident will render Apple’s help unnecessary in this case. However, now that the debate has been started, issues have been raised that go far beyond just the San Bernadino phone. The FBI has been advocating for the right to access data on any device since 2014. Even if the hack works on this phone, the issue is not going anywhere.

Service providers and resellers in the channel should be paying close attention to the debate. It’s true that the particulars in the case may not be relevant to everyone in the channel. After all, the FBI promises it’s only about this one phone. And we’re not even talking about Apple giving the data that’s on this phone to the government. “The issue is not about releasing the data here,” says Shubha Ghosh, a professor of law and Director of the Technology Commercialization Law Program at Syracuse University, in an email, “but about giving the FBI means to access the data.”

But the legal battle that began in February will help define the parameters of digital privacy in this country. Exactly what companies are required to divulge, in what circumstances and for what purposes remains ambiguous as our technology has outpaced our legal system. In fact, the law at the heart of the debate is 227 years old. There’s a single line in the All Writs Act of 1789 that says, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

If this sounds vague and broad, that’s because it is. Typically, the All Writs Act is used in situations where there are no existing and applicable laws or statutes. And that’s exactly why the channel should take notice: the digital world is only a few decades old, and the legal roadmap for navigating it is still very much in the early stages. With the All Writs Act, the government has a tool to help them pave the way for future legislation. Actually, Ghosh points out, we already saw an example of this in the channel back in 1977, when the Supreme Court used the All Writs Act to compel the New York Telephone company to install a pen register to record any dialed numbers on two telephones – before the Pen Register Act was in effect.   

So while the legal debate is technically about the FBI compelling Apple to create a backdoor that would allow them to bypass the security measures of the San Bernadino phone, the precedents it will set have much further-reaching consequences. And the political debate it’s sparked will certainly influence future legislation.

“We need to decide, as a nation, how much power the government should have over our data and our privacy,” Cook said on Monday.

Ron Nash, CEO of Pivot3, agrees the time has come to draw clear, legal boundaries around digital privacy. As a provider of hyper-converged infrastructure with a strong presence in the video surveillance industry, Nash is following the case closely to try and see how the outcome might affect how he safeguards his customers’ privacy. He says it’s all about striking the right balance between the kind of pervasive intrusion on phone systems by the NSA that Edward Snowden uncovered on one side and a real need for law enforcement to access certain data to keep us safe on the other.

“What we’re playing for here is the validity of the Internet as a tool,” Nash says. If we don’t find the sweet spot between privacy and security, he argues, then the Internet begins to lose integrity. That’s shaky ground for a modern-day culture that’s built on digital capabilities. Nash believes that the government should—on occasion, with valid cause and following proper legal procedure—be able to access data in the name of security, just as they do with wiretaps. He says he would cooperate with the FBI on a case-by-case basis, but would draw the line at creating a function that would work on any and all Pivot3 clients. “I’d say no, I’m not doing that unless you make me do it.”

As it stands, we may have to wait for the next high-profile case before we make any more headway defining these blurry parameters. If the FBI manages to get around the iPhone security measures without Apple’s help, the talk around data privacy may die down temporarily. But the issue will have to be decided in the courts sooner rather than later. “Our laws aren’t written for the digital age,” says Nash.

A 227-year-old writ just isn’t going to cut it for much longer.