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Further investigations of the San Bernardino Shooting has the federal government asking Apple, Inc. to dismiss public privacy agreement.

Is this ethically admissible through the All Writs Act of 1789?

Consider the following:

  • Absence of alternative Remedies.
  • Independent basis for jurisdiction.
  • Necessary or appropriate in aid of jurisdiction.
  • Usage and principles of the law.

February 16, 2016:

  • The federal government invoked the All Writs Act.
  • Ordering Apple Inc. to create a special version of iOS, without "Full Device Encryption."
  • in attempt to hack an iPhone involved in the investigation.

Does national security have limitations?

United States of America vs Apple(2016-02-16) (“In the matter of the search of an Apple iPhone seized...)

user7311
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  • At least one very notable expert (Michael Hayden, ex-chief of NSA and CIA) has publicly stated that breaking the iPhone encryption is overall damaging to US national security. The fact that the good guys have strong encryption weighs more than the fact that the bad guys have it, too. – gnasher729 Feb 23 '16 at 00:00
  • Interesting. Do you have an accredited source for his statement? I would like to read more into this. – user7311 Feb 23 '16 at 02:22

2 Answers2

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All laws and government actions have to comply with the restrictions of the US Constitution. Marbury v. Madison (1804) said that "a law repugnant to the Constitution is void".

For a recent example where government actions towards the goal of national security were found to be contrary to the Constitution, see Boumediene v. Bush (2008). Most relevant to your question is their holding that (emphasis mine):

Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.

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The case involves an order for Apple to create and sign an operating system update bypassing encryption on the device by disabling the auto-erase and delay-password-retries function, allowing a brute force attack.

Ethics and admissability are not issues, nor to my knowledge is a privacy agreement. Notably, the phone's owner is consenting to the search, but does not know the password.

Obviously claims that national security legitimizes behavior X have some limitations under the law of any nation which claims to be ruled by law, including the United States. Where the precise boundaries of legitimate national security concerns lies is an ever-evolving question. For example, the Alien and Sedition Act (and by implication, similar state statutes prohibiting anti-American speech) was struck down in Brandenberg v. Ohio, but had been accepted up to that point.

Simiarly, the Korematsu decision legitimized the race-based American concentration camps targeting Japanese Americans even though we recognize today that they were clear violations of the Fourteenth Amendment and nobody with half a brain will get caught dead citing the case. Each generation wrestles anew with the legal limits on how far national security justifies intrusion into the individual sphere of liberty.

Tom
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  • Apple, Inc apparently thinks that "The complicated encryption mechanisms that iOS puts in place are what keeps the lid on the users privacy. And it’s literally Pandora’s box: Once you open it, even a bit, there’s no way back." iOS and Mac Developer - Gernot Poetsch – user7311 Feb 20 '16 at 04:14
  • By creating a tool to weaken security you weaken security, even if you do not quite destroy it. But Apply is surely a massive target for industrial and state espionage, meaning even the existence of this tool creates significant security threats, even leaving aside the issues of legal precedent and potential government abuse in later cases and by other governments. – Tom Feb 20 '16 at 04:33
  • You may want to revise "Ethics and admissability are not issues, nor to my knowledge is a privacy agreement." "Federal law enforcement and leading technology companies have long been at an impasse about how to balance digital privacy for consumers against the responsibility of federal agents and police to investigate crimes or terrorism." -Associated Press – user7311 Feb 20 '16 at 04:27
  • Balancing digital privacy against investigatory interests is not a privacy agreement. – Tom Feb 20 '16 at 04:30