Apple’s iPhone Blunder

Richard Epstein*

Richard Epstein

Richard Epstein

Can the United States government compel Apple to help break into the phone of Syed Rizwan Farook, who, along with his wife Tafsheen Malil, gunned down fourteen innocent people last December at the Inland Regional Center in San Bernardino? That question has sparked fireworks in recent days. The dispute arises because Apple has equipped its new iPhones with encryption settings that erase the data contained on the phone whenever ten false password entries have been made. It was agreed on all sides that only Apple had the technology that might overcome the encryption device.

In her short order of February 16, Magistrate Judge Sheri Pym instructed Apple to offer that assistance, pursuant to the All Writs Act, which dates back to the First Congress in 1789. The heart of the matter lies in whether the government—more specifically the FBI—can require computer companies to build in back doors to their systems to allow the government to enter.

I participated in hearings that then-Senator John Ashcroft held in March 1998, and spoke in opposition to the measure, along with Kathleen Sullivan, then a professor of law at Stanford Law School. The greatest risk of the built-in back door is that the government will not be the only party that will enter through it. Back doors necessarily compromise the integrity of a security system. There were therefore serious constitutional as well as practical objections to these early proposals. It would be highly dangerous to allow the government to seize confidential data sources without first obtaining a search warrant, except in conditions of genuine emergency. And the loss of confidential data through theft gives rise to serious risks to vital data, for which compensation from the government, assuming that it were available, could never repair the damage or restore the confidence that people have within the system.

It should not be supposed however, that the proposals that were bandied about in 1998 reflect the state of play on the ground today. The first myth to dispel is that the current case has anything to do with data privacy at all. On the day the order was issued, Apple CEO Tim Cook posted a strong message to his customers denouncing the government. Unfortunately, Cook gave away the privacy game when he noted that Apple had cooperated with the government by turning over all data pursuant to a valid search warrant. The difficulty here is that the information that was sought from Farook’s iPhone had not been backed up, so that the government could not conduct a simple search on its own to get it. Instead, it had to attack the encryption systems built into the phone itself.

In dealing with that issue, it is important to note that Farook did not own the phone; his employer did, and it gave consent to the search. This knocked out any Fourth Amendment claim that the government intended to perform some unreasonable search and seizure. The point is true, but also inconsequential, that the legal situation would not materially change if Farook had used his personal password on his very own phone. The Fourth Amendment states, “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Clearly, these requirements were satisfied when the government identified the iPhone to be searched, knowing that its possessor had committed mass murder. One of the tragic gaps in Cook’s letter is that he ignores the strength of the government’s Fourth Amendment case. He also fails to explain why granting the government’s request necessarily involves the compromise of the privacy of millions when only one iPhone is at stake.

Cook skirted the Fourth Amendment issue. Instead, the gist of his claim is contained in the following misguided sentence: “Rather than asking for legislative action through Congress, the FBI is proposing an unprecedented use of the All Writs Act of 1789 to justify an expansion of its authority.” Every part of this sentence is misguided. First, there are thousands of government applications each year under the All Writs Act; there is no reason whatsoever why the government has to seek to pass new legislation to cover a situation that is amply covered by current laws.

Nor is Cook correct in insisting that the All Writs Act does not cover this particular case. The relevant portion of that short statute reads: “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.” Terms like “necessary,” “appropriate,” “usages,” and “principles” were chosen precisely because Congress did not want to pin judicial discretion to particular technologies known in 1789 or any subsequent date. That language is no more problematic than the text of the Fifth Amendment, which holds that the United States shall not deprive any person “of life, liberty or property, without due process of law.”

No one doubts that these terms can give rise to difficult cases at the margins. But it hardly follows that Apple’s case is one just because it hogs the headlines. Cook attempts in his letter to stake out a per se rule that it is somehow outside the scope of the All Writs Act to require any company to work with the government in overcoming technological barriers. The case law on this question is well settled, and the government brief has assembled an impressive list of precedents in which private parties have been required to assist the government in its legitimate enforcement efforts. These include “ordering a phone company to assist with a trap and trace device” or having a company “assist in accessing a cell phone’s files so that a warrant may be executed as originally contemplated.” It is also the case that Apple had assisted the government without complaint in over other 70 cases.

To be sure, the order here is more complex than those imposed in other cases, but the legitimate government interest in the document is more compelling than those other cases, so that perhaps it is more accurate to say that what is truly unprecedented is that any company would seek to defy the government when the stakes are so high. Right now, Apple is worried that assisting the government will tarnish its brand. Cook may well be wrong. The better strategy might be to insist on the narrowness of the order, thereby avoiding the current soap opera. But Cook seems intent on turning the case into a heroic struggle, by making some dubious leaps of logic:

If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.

This parade of horribles is unworthy of Apple. Judge Pym knows full well that a balancing test is implicit in any application of the All Writs Act. She therefore made it clear that Apple’s efforts are narrowly limited to the task of uncovering this requested information from this device, and no other; that Apple may limit the government to the remote access needed to unlock the passcode by brute force; and that Apple could protest the order within five days if it believed compliance with its terms would be “unreasonably burdensome.” Her order does not pave the way for the government to unilaterally insist in the next case that Apple must disclose the private information of millions of people.

Remember the central motif of the All Writs Act is one of balance and proportion. Allowing the government to win in one case under dramatic circumstances does not give it carte blanche to do whatever it wants in other cases. I strongly opposed the push for a mandatory built-in back door in 1998, and I would oppose one today. But, again, it is irresponsible hyperbole for Cook to write that “it would be wrong for the government to force us to build a backdoor into our products.” That broad request is not found in the government’s plea for a specific fix under which it need not be told anything about the technology that Apple will use in order to overcome the data protection feature on its iPhone.

Other defenses of Apple’s legal position are no better. Writing in The New Yorker, Amy Davidson also resorts to improbable scenarios to find the government’s request dangerous. She writes: “If it can tell Apple, which has been accused of no wrongdoing, to sit down and write a custom operating system for it, what else could it do?”

Once again, this reasoning is flawed. Of course, the All Writs Act applies to persons who are accused of no wrong. Persons who have been accused of no wrong still have to comply with warrants or subpoenas in cases in which their noninvolvement is wholly beyond dispute. The government can and does often compel labor in these situations. The hard question again is whether the need for the evidence trumps any broad claim for privacy, which given the specificity of the request of Apple, it surely does. Nor is Apple being asked to make an operating system. The government just wants to find the password without destroying the data. And as to the last question, the burden is always on the government to explain what it needs, not for any private party to parry an infinite set of government claims.

Davidson is on even weaker ground when she muses that the government might use its power to further violate the rights of individuals: “Could an imam, for example,” she writes, “be asked not only to tell what he knows but to manufacture an informant?” In posing her hypotheticals, Davidson takes no note whatsoever of the undisputed point that the only party to whom the government could turn for this assistance is Apple itself.

It is a commonplace of the law of common carriers that anyone who has a monopoly over some public utility or common carrier can be required to offer service on reasonable and nondiscriminatory terms. The existence of the monopoly is the justification for the extra burden. The government’s case against Apple is perfectly analogous to the common carrier situation insofar as the services it demands cannot be competitively provided. But when it comes to finding informants, the government is just as able, indeed more able, to do that by itself, which is why it never makes such silly requests under the All Writs Act.

Davidson concludes her think piece with a misguided flourish. In using the All Writs Act, she argues, “the government is attempting to circumvent the constitutionally serious character about many questions about encryption and privacy.” Nonsense. There are no constitutional issues raised by this government demand, even if some such claims might arise in other circumstances. The Wall Street Journal reports that Apple has hired two “heavyweight” at the prestigious law firm Gibson Dunn, Theodore Olson and Theodore Boutrous. Both are great lawyers who will have their work cut out for them.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

We Need More Guns on the Ground

Richard Epstein*

Richard Epstein

Richard Epstein

The mass shooting in San Bernardino by the young Muslim couple Syed Rizwan Farook and Tashfeen Malik, now clearly identified as middle-class ISIS terrorists, has created a vast sense of unease in the United States. Everyone agrees that their heinous conduct was horribly wrong. But the consensus ends there. Come to the next question, and there is hopeless disarray on the appropriate collective and individual responses to the looming threat of terrorist acts. It is best to tackle the widespread and diffuse threat of the use of deadly force head-on.

This issue is, of course, not just a domestic one. It is also a question of foreign affairs. The more the United States and its Western allies dither over using ground troops against ISIS, the more mass slaughter and mayhem is committed in the territories under ISIS control. One recent tally has ISIS as having already killed 170,000 just in Iraq. This is a major reason why the refugee flow in Germany alone is expected to reach 1.3 million by year’s end.

None of this carnage has moved the United States and its Western allies to action on the ground. But the killings, first in Paris and now in San Bernardino, have shown that there is no way to wish ISIS away as some distant Middle-Eastern problem. It is now a domestic problem that requires both a global and national response.

Today, an effective Middle East military response is not just a humanitarian imperative; it is also an integral part of our own strategy of national defense. Operating from its secure base will allow ISIS to create, by words and deeds, a trail of death in the United States and elsewhere. The quicker one cuts off the ISIS head—an all-too appropriate metaphor—the easier it will be to attack its appendages in the United States and the rest of the Western world. 

Yet in his recent speech on ISIS and the San Bernardino tragedy, the President once again categorically ruled out the use of any sustained ground troops overseas, insisting that he will not put American soldiers in harm’s way for a decade in the effort to take out ISIS.  And so the wound is allowed to fester indefinitely by a President who fails to acknowledge the success of the surgeagainst far greater obstacles. In the larger sense, nothing else he says or does can compensate for the horrendous losses attributable to this delay.

The President’s indefinite timetable, of course, makes it ever more imperative, and ever more difficult, to counter the terrorist threat at home. Yet on this issue, it is distressing to see just how far off base the responses from commentators are. For instance, there have been some senseless broad-based attacks on Muslim citizens who are every bit as appalled, if not more so, at the violence committed in their religion’s name. A successful counterterrorist strategy will enlist their support, for they are in the best position to slow down the ISIS recruitment rate and to provide information to public authorities about secret weapon stashes and terrorist cells. It doesn’t help that some Muslim leaders want to place part of the blame on an extremist American foreign policy, as if the slaughter of Muslims by Muslims should be laid at the doorstep of the West. Good relations are very much a two-way street.

Then there’s the matter of gun control. No matter what the state of play is on the ground, gun control advocates around the country think the solution to mass shootings is tougher restrictions on gun access. President Obama leads the charge when he plumps “for common-sense gun safety laws, stronger background checks,” and insists that an effective countermeasure against terror is prohibiting people on no-fly lists from buying guns.

Worse still, many gun control advocates pillory anyone who disagrees with them with invective that it is hard to sort out. Perhaps the most visible attack came from U.S. Senator Chris Murphy, who right after the shooting directed his venom not toward the killers, but to the Republican Party: “Your ‘thoughts’ should be to take steps to stop this carnage. Your ‘prayers’ should be for forgiveness if you do nothing again.” But do what? According to a New York Times front-page editorial, we should not “abet would-be killers by creating gun markets for them.” And further: “It is past time to stop talking about halting the spread of firearms, and instead to reduce their number drastically.”

Dream on. Moral indignation is never in short supply during such crises, but what is needed is some assurance that the means selected will achieve the desired end. In this case, an inexcusable combination of boorishness and ignorance pushes matters in the wrong direction. The boorishness of people like Senator Murphy undermines the social solidarity needed to boost morale and allow a nation to meet the perils at hand. When people say their thoughts and prayers are with others, they are making a small but vital gesture that tells people who have lost loved ones that they are not alone. To mock that behavior is just a thinly veiled way to attack those who are opposed to new forms of gun control.

Worse still, this level of moral superiority comes from the same people who never once try to meet the substantive arguments against them. Start with the simplest fact that the number of guns in the United States has risen over the past 20 or so years, while at the same time the crime rate has been cut in half. The causes for the drop are doubtless multiple, but at least one factor in the mix is that the wider ownership of guns has changed the ratio of guns in the hands of good and bad people. “More guns, less crime” is no moral incantation, but there are good theoretical reasons why the claim cannot be dismissed with contempt. The prospect that force will be met with force reduces the gains from violence, and thus should thereby reduce the frequency of gun deaths.

The size of this effect is hard to measure, but other arguments against gun control reinforce the basic conclusion. A recent catalogue of the objections to gun control laws was forcibly advanced by Chicago Tribune columnist Steve Chapman, who notes that California’s tough gun laws did nothing to stop Farook and Malik, who also were not on any no-fly list. Sadly, no scheme, however elaborate, can prevent guns from falling into the hands of the wrong people—see France. The Wall Street Journal ran asimilar article noting how easy it is to convert legal weapons with limited capacity into automatic weapons that are far more deadly.

But even if gun control had a 100 percent effectiveness rate of stopping these kinds of shootings, the risk of terrorist attacks, both local and global, remains. Palestinians use knife attacks with deadly effect against Israelis. People can also be killed with blunt instruments or by strangulation and arson. Worse still, guns are not the most efficient weapons to use for mass killings. It was a truck-bomb explosion outside the Alfred P. Murrah federal building in Oklahoma City that left 168 people dead and injured 680 more in 1995. It was jet planes that killed thousands on 9/11. And if Farook and Malik had even modest competence in manufacturing their pipe bombs and other explosives, the toll of death and injuries in San Bernardino would have been much higher. The sad truth is that any set of strict gun control laws at either the federal or state level are likely to divert resources that are better spent elsewhere, while doing nothing to reduce the death toll from terrorist attacks, which might well increase. It is not enough to do something. It is critical to do something effective.

And it is here that the story turns back to Iraq. In both Iraq and the United States, a comprehensive strategy against terrorism must involve the use of greater force on the ground. But sending troops to California is not the answer. Ramping up protection at home is. Some portion of that burden will of course fall on our armed police forces. But the key element in this battle could well be a transformation in the attitude toward concealed weapons. In Israel, it is common practice for off-duty police and military personnel to carry concealed handguns or other weapons. The same approach should be adopted in the United States for it is the only remedy that is likely to provide a credible first response to a terrorist attack.

The great weakness of gun control laws is that they try to attack the problem at a time and place far in advance of any actual attack. The precautions that are used apply to lawful and dangerous gun users alike. No matter what the checks, it is all too easy for the bad apples to escape detection. The tragedy is that later on, at the point of the actual attack, it is easy to identify the killers, but a defenseless crowd is unable to do anything but flee in response. But put even one random person with a gun in the room, and now the attackers face immediate resistance long before the police arrive in force. Because the weapons won’t be in the hands of rank amateurs, it is highly unlikely that the off-duty officers or military personnel will compound the problem by foolish actions. Stopping or slowing down an attack by taking out an assailant could save many lives.

In addition, guns in defense are not only good against assailants with guns; they can also take out attackers who are using explosives or grenades. It is therefore harder for terrorists or criminals to switch weapons in order to escape resistance. Indeed, the prospect that there may be someone on site who can actually fight back should serve as a deterrent against random terrorist attacks to begin with. The bigger the terrorist target, the larger the number of armed officers should be. Since, moreover, no single central authority will know the exact location of the police and military officials carrying concealed weapons, it becomes far more difficult for terrorists or suicidal maniacs to develop plans to avoid confrontation in the first place. The actual cost to the public budget is low, and the probable effectiveness is greater than that of any alternative strategy.

It is no coincidence that those who will recoil against this proposal are the same people who think that the U.S. and its allies should avoid boots on the ground in Iraq. Their timidity in the face of armed mayhem compounds the risks our nation faces. Our misguided gun control champions have to do more than insist that we should try some new gun-control gimmick to make things better. They have to come forward with some concrete plan that works not only in some idealized universe, but in the evermore dangerous environment that we face at home. If we do not arm off-duty officers, San Bernardino could easily become the opening chapter in an ever-lengthening tragedy. In this battle, force must be met with force; better background checks just won’t cut it.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.