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Could it be? Does a big techco finally recognize who really butters its bread?

Published February 18, 2016 6:59 am by Claire

Okay, everybody has now seen Tim Cook’s letter (yes, even Joel).

Short version: Court orders Apple to develop new software for the fedgov that will compromise every Apple customer’s security. Fedgov lies and says it wants only to crack one terrorist’s phone. Cook responds like a real privacy advocate. This response is neither altruism nor political activism. It is — finally! — a tech company recognizing who actually pays its bills. Among other things.

Because of my crazy week, I’ll let Commentariat member S. take it from there.

I know many in the liberty movement despise the very concept of corporations. I agree that the partnership of government and corporations is evil and dangerous.

But this case illustrates another possibility. Apple may ultimately cave, but the laws of economics are not negotiable. Apple must serve consumers or Apple will die.

Where this gets really interesting is that the same high and mighty courts that have decreed that corporations are persons now confront a person who defies them. Unlike us peons, Apple can’t be caged, waterboarded, thrown in the hole, raped, beaten, or shot. Maybe some Apple executives, eventually, but even then the government faces a far more formidable opponent than their typical prey.

Apple’s market cap is half a trillion dollars. There are roughly 5 billion shares. They have resources and capabilities that the FBI wants but can’t muster.

I’ll submit that Apple is acting in the interests of privacy and liberty. Their motivations are economic, but the list of liberty supporters with such power and resources is rather short these days. I welcome Apple’s actions and am glad that I voted with my wallet to buy a fully encrypted iPhone.

S. then links to lawyer Scott Greenfield, who makes a few more good points:

Not only does the court order Apple to make the sun rise in the west, but it tells it how the sun should rise, and then, if the sunrise protocol fails to meet the government’s requirements, allows Apple to politely seek the government’s acquiescence.

But who made Apple an adjunct to law enforcement? Apple didn’t commit any crime. Apple didn’t shoot anyone. What does Apple have to do with any crime in the first place? Yet, the subtext of the order is that Apple, the maker of the encrypted phone, can be made a slave to the government’s demands, and that the Magistrate Judge has the authority to order a business, unrelated to the commission of any crime, to spend its time and money, expend its devs’ efforts, to comply with its order, upon pain of contempt. Why?

The question should not be whether it’s “unreasonably burdensome” for Apple to comply with the order, but whether Apple should have to lift a finger at all. If Apple chooses not to voluntarily become a division of law enforcement, and has done nothing criminal, then what authority does a court have to make it a slave to the government’s demands?”

Published in Government, Official thuggery, bad prosecutions, and bad law, Privacy and self ownership and Resistance

14 Comments

  1. MamaLiberty
    MamaLiberty February 18, 2016 7:27 am

    “…what authority does a court have to make it a slave to the government’s demands?”

    As I’ve been asking for years… what authority does a government have to make slaves of everyone in the first place? The courts are simply part of the government, and have no separate “authority.”

    This stand by Apple seems to be a major change and could herald great things. Note that Apple does not reject all cooperation, and protests that they think government and the FBI are generally benign… but that may simply be camouflage for now.

    It will be very interesting to see where this goes.

  2. Laird
    Laird February 18, 2016 8:11 am

    I’m not a big fan of Apple products, but Tim Cook is converting me.

    I agree with the point made by Scott Greenfield. It’s one thing for the government to order Apple to divulge information in its possession (which it can legally, and constitutionally, compel); it’s quite another for it to order Apple to build a special program to access data not in its possession. This is gross overreach by the government.

    I note that this case is in California, which is within the 9th Judicial Circuit. The 9th Circuit is notoriously liberal, and as a rule I have nothing good to say about it. But in this case that just might work in Apple’s (and our!) favor, if it comes down on the side of privacy rights. That wouldn’t surprise me at all. And in that case (in either case, actually) it then heads to the Supreme Court. As MamaLiberty says, this will be very interesting.

  4. Fred
    Fred February 18, 2016 3:28 pm

    I don’t think that Apple can sustain it’s position. Apple’s position is that it doesn’t want to crack this one phone because the crack is usable elsewhere. I agree with this but think a better defense is – the device is not the companies property, the company will hand over any related data it can find that is it’s property, that pertains to this one device.
    There is a long train of cases in which the court has required companies to assist with investigations around a product. There has been a crime, people are dead, Apple will lose the fight either way but it looks like they may (re)gain some market share.

  5. RustyGunner
    RustyGunner February 18, 2016 7:37 pm

    My nasty suspicious mind tells me they can comply with the court order quietly while refusing with bravado publicly.

  6. Bill St. Clair
    Bill St. Clair February 19, 2016 6:18 am

    A big YES to Scott Greenfield’s take. And that’s why no retail establishment should be required to check identification of any of its customers, ever. Their business is selling stuff, not enforcing who the government has decided is allowed to buy it.

  8. s
    s February 19, 2016 9:41 am

    Regarding the argument that Apple no longer owns the iPhone in question, that’s already been raised. Scott Greenfield presented some of the arguments and counter-arguments:

    The DOJ, however, argues that while Apple may not own the phone, it owns the software — specifically, the lockscreen part of the operating system. And that’s where the government makes it most unique — and most dangerous — assertion:

    Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant. Apple’s software licensing agreement specifies that iOS 7 software is “licensed, not sold” and that users are merely granted “a limited non-exclusive license to use the iOS Software.” See “Notices from Apple,” Apple iOS Software License Agreement ¶¶ B(1)-(2), attached hereto as Exhibit C. Apple also restricts users’ rights to sell or lease the iOS Software: although users may make a “one-time permanent transfer of all” license rights, they may not otherwise “rent, lease, lend, sell, redistribute, or sublicense the iOS Software.” Ex. C, ¶ B(3). Apple cannot reap the legal benefits of licensing its software in this manner and then later disclaim any ownership or obligation to assist law enforcement when that same software plays a critical role in thwarting execution of a search warrant.

    This is an extremely dangerous and problematic argument, almost laughable in the sense that any end user knew of, and agreed, to Apple’s retention of vast rights in what they thought they bought. As bad as it is, however, the government has a point. Apple can’t claim to retain the authority to do pretty much anything it pleases with the iOS as against its customer, but deny it has that same authority when responding to the government.

    The Electronic Frontier Foundation provides Apple’s response:

    The fact that Apple’s devices include software, and that such software comes with licensing requirements, does not change anything. See Reply at 13-15. Apple’s licensing agreement does not establish a connection between Apple and the private data its customers store on their devices. It does not, for example, permit Apple to invade its customers’ devices uninvited or prohibit those customers from re-selling their devices to someone else absent consent from Apple. It merely places limitations on the customers’ use and redistribution of Apple’s software (limitations that are common to the industry). To hold that the existence of such a license is enough to conscript Apple into government service would be to say that the manufacturer of a car that has licensed software in it (which is increasingly the case) could be required to provide law enforcement with access to the vehicle or to alter its functionality at the government’s request.

    The day of EULAs giving you the authority to do anything you want puts you in the government’s crosshairs. If you don’t want to be the government’s bitch anymore (not that you didn’t enjoy it up to now), time to make sure your EULAs reflect a little more humility toward your end user.

    And for the end user, maybe its time to start reading the rights you’re giving up to own the next shiny toy?

  9. TJ Madison
    TJ Madison February 19, 2016 11:22 am

    I don’t believe the premise that FedGov can’t break the encryption…perhaps they can’t use the info gleaned from said device in a court of *cough* law *ahem* if they crack it? or just want the willfully ignorant to think their data is secure..on a phone? lol
    Color me skeptical 😉

  11. TJ Madison
    TJ Madison February 19, 2016 12:00 pm

    Well maybe the old saw “Big brother is here, and he’s retarded” is actually truer than I suspected. It would certainly explain a few things 😀

  12. Fred
    Fred February 19, 2016 1:30 pm

    That’s a good point. Do we own our phones, computers, and TVs? gotta read those fine print agreements I guess.

  13. Jim B.
    Jim B. February 19, 2016 7:51 pm

    What’s actually happening here is more than our privacy rights and a company defying orders from a superior government.

    This is a who owns what and who is superior to whom fight.

  14. david
    david February 23, 2016 4:39 pm

    Here’s a thought – Apple could eventually be forced (somehow) into caving and giving the feds what they want. And Apple could close that back door with the very next update of the IOS – say, the very next day….

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