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Privacy Law

FBI vs. Apple and the Rights and Limits of Privacy

 

iphone6-1013238_1280 (2)Perhaps you have been watching the dance between Tim Cook, CEO of Apple and the Federal Bureau of Investigation. Ostensibly, they are fighting over one phone. But it’s much more complicated than that.

THE ONE PHONE: The FBI is understandably frustrated that they have the phone belonging to Syed Rizwan Farwook, the San Bernadino gunman who was killed by police along with his wife, after murdering 14 people. The FBI, after being criticized for not doing nearly enough intelligence work to prevent the tragedy, is trying to track down any networking or other information from Farwook’s phone, which is locked. The FBI has not only ordered Apple to figure out a way to unlock this specific phone, but they have also asked the courts to force Apple’s hand and to create a “back door”, that is a way to unlock all phones in the future.

Apple is resisting the FBI, although trying to portray themselves as a good citizen at the same time.

Public opinion, at first glance, might seem to be favoring the FBI. After all, this was a heinous crime, and intelligence authorities should have access to every legal avenue of investigation. But there seems to be broad consensus that Apple should stand its ground for a number of reasons.

CRITICISM FROM THE RIGHT: Those who criticize the US intelligence services as inept or weak point to the events at San Bernadino and are quick to note that the FBI is trying to scapegoat Apple for their own inabilities to prevent the tragedy. They also tend to frown on government intervention in private entrepreneurship.

CRITICISM FROM LIBERTARIANS: All those who are concerned with privacy rights point out, correctly, that the FBI already has the records of phone calls and texts from Farwook’s phone via the phone service provider. They staunchly support Apple’s default encryption basis (which is not the case with Android phones) and even the Apple “kill switch”, which completely locks the phone after ten incorrect passwords are entered.

CRITICISM FROM THE ACLU: The American Civil Liberties Union has also sided with Apple, noting that there is already a “digital privacy divide” in the United States with poorer citizens utilizing phones that do not have encryption as the default setting. The ACLU is also concerned with allowing invasions into people’s phones for cases that are far less serious (noting that this is the perfect test case because of its seriousness).

CRITICISM FROM THE PRESS: Reporters, editors and publishers have raised the red flag of protection of confidential sources. In addition, those reporters (and business travelers) who live, work and travel in far less democratic places like Iran, North Korea, and China think that losing the ability to have encryption would place many Americans and others in danger. Already LGBT travelers to Russia are warned to take different phones when they travel there.

IMPACT ON EU/US PRIVACY SHIELD AGREEMENT: Dawda Mann attorney Brian Balow particularly notes that there is an impact on the European Union/United States Privacy Shield Agreement, “After months of negotiations the EU and U.S. agreed on February 2, 2016 to adopt a “Privacy Shield” agreement to replace the long-standing (and invalidated) Safe Harbor that enabled U.S. entities to receive protected individual information from EU member states.  An ongoing concern of European privacy advocates has been U.S. Government access to individual information (and this ultimately led to the Safe Harbor invalidation).  This current action could impede the finalization of the Privacy Shield agreement (via “adequacy decision”), and leave U.S. companies in limbo in terms of how to handle protected individual information from the EU states.

This case, however it turns out, has ramifications for the digital privacy legal milieu far beyond the Iphone.