Apple is selling you a phone, not civil liberties

[Commentary] Unless you’ve been living in a cave, you already know by now that a federal magistrate judge in California has issued an order to compel the technology giant to provide technical assistance to the FBI in unlocking the iPhone of one of the San Bernardino (CA) mass shooters. We will leave for another day the question of whether a multinational corporation with shareholders and customers worldwide and production in China, is meaningfully capable of patriotism, let alone love. In this post, however, we want to make an argument: Apple is being mischievous here, and the company’s self-presentation as crusading on behalf of the privacy of its customers is largely self-congratulatory nonsense. In reality, the case poses starkly the stakes in the “Going Dark” debate. What’s more, it was entirely predictable; indeed, one of us predicted it with some precision barely a month ago.

Far from the “unprecedented” “overreach” of Apple’s rhetoric, given the uncertain state of the law and the stakes in the case in question, it would have been akin to malpractice for the FBI and Justice Department to not fully explore the scope of Apple’s obligation to help the government effectuate a warrant in a major ISIS case. More particularly, given the company’s simultaneous opposition to any legislation to clarify industry obligations as companies implement stronger encryption systems and its insistence that current law cannot force it to help the government, we submit that Apple is really trying to carve out a zone of impunity for itself that rightly alarms the government and should alarm the very citizens the company (which calls these citizens “customers”) purports to represent. The company’s near-duplicitous posture thus highlights the urgent need for a legislative intervention spelling out who has what obligations in situations like this one, situations that will only grow more common in the coming months and years.