On Apple, privacy and what the government has required through the All Writs Act.

Marco Rubio said in the last debate:

The only thing they’re being asked to do, and the FBI made this very clear about 48 hours ago, is allow us to disable the self- destruct mode that’s in the Apple phone so that we can try to guess using our own systems what the password of this killer was.

And I think they should comply with that. If that’s all they’re asking for, they are not asking for Apple to create a back door to encryption.

Shall we first dispense with the word ask, as if this is some voluntary endeavor?  The Obama Justice Department successfully asked a federal magistrate judge to order Apple to invent a way into the phone in question.  Apple has cooperated with other areas of the investigation because they wished to help out.

Apple has refused to create a new software program designed to defeat the security features of the device. After reading the documents, one wonders where Mr. Rubio achieved his understanding of the issue? Perhaps an FBI press appearance?  From the order compelling Apple itself, we have:

Apple’s reasonable technical assistance may include… providing the FBI with a signed iPhone Software file, recovery bundle, or other Software Image File that can be loaded onto the SUBJECT DEVICE

This is, quite clearly, an order requiring Apple to write new software to try and break into the phone.  In fact, one of Apple’s defenses to the order compelling it to do so is that the order amounts to compelled speech, and that it violates the First Amendment in doing so.  For while we have the freedom to speak, we also have the freedom not to, and this order requires speech.

Once again Mr. Rubio, Apple is not in a position to “allow” anything on the device in question.  It does not have a program that the government can use – it would be forced to make one.  Apple estimates – under penalty of perjury I might add, that it would take between 6 and 10 engineers up to a month to create what has been ordered.  They are being required to fashion a key that doesn’t exist.

How can it not be a back door to encryption, if the sole purpose of what is being ordered is to defeat the security protections Apple has on its encryptable device?  If the end product renders that encryption worthless to users’ privacy, can any person not forthrightly call it a back door?

Next up was Senator Cruz.  He said:

Apple should be forced to comply with this court order. Why? Because under the Fourth Amendment, a search and seizure is reasonable if it has judicial authorization and probable cause. In this instance, the order is not put a back door in everyone’s cell phone. If that was the order, that order would be problematic because it would compromise security and safety for everyone.

I would agree with Apple on that broad policy question. But on the question of unlocking this cell phone of a terrorist, we should enforce the court order and find out everyone that terrorist at San Bernardino talked to on the phone, texted with, e-mailed. And absolutely, Apple doesn’t have a right to defy a valid court order in a terrorism investigation.

Let’s first strike down the Senator’s straw man.  No one has said Apple has a right to “defy a valid court order in a terrorism investigation.”  Nice try though.  Apple, presented with what it believes is an IN-valid court order, has followed legal procedures to ask that the allegedly improper order be vacated.  Does the Harvard trained lawyer who has argued nine times before the Supreme Court not understand that, or was the aspiring presidential candidate pandering before an uninformed crowd?

His other comments however suggest he hasn’t read much about the case, or the mechanism of how the government has gone about asserting its will.  His discussion of the Fourth Amendment notwithstanding, there was no showing of probable cause, and no chance for Apple to present an argument about this issue.

The government relied on something called the All Writs Act to convince a federal magistrate to issue the order to Apple.  Not a search warrant, not a regular court order, where Apple would have been able to present arguments against.  If anything, conservatives should be wary of the government using novel legal theories to cite little used procedural permissions as the basis for major expansions of executive power.  Apple is protecting us all by objecting to its use in these circumstances.  

In standing against the federal government, Apple is standing up for separation of powers, the right to privacy, and the right to freedom of speech.  If Rubio and Cruz would actually read the government’s order, and Apple’s response, they might agree.