English Final- Technological Immunity

Essay 3: Technological Immunity

            In 2015, fourteen people in Bakersfield were gunned down by a couple that had pledged allegiance to a terrorist organization. Afterwards, part of the story was the inability of investigators to access the killers’ phones for potential evidence (Nakashima). A similar circumstance has arisen just recently, as almost twice that number were gunned down in a Sutherland Springs, Texas church. The shooter is now dead, and police have been denied access to any materials on his personal device (Benner). In each instance, the encryption and security coded into the IOS on the iPhones owned by the killers served to stymie court-ordered searches. These privacy-protecting security controls on personal devices amount to an illegal product, usurping the authority of constitutional protections and subverting justice. The purpose of this discussion is to clarify how Apple’s IOS restricts your rights (regardless of phone choice) as much it purportedly protects those of their users, while at the same time creating a members-only social class that carries paid-for immunities from the law in their purses and pockets.

            Technology and privacy are not commonly inclusive of one another. For every story such as these where a device is so successfully secured, there are many more describing systems that all but welcome intrusion. Yahoo (2013), Uber (2016), Sony Pictures (2014), and many others have all become examples of the dangers presented by unintended access to “closed” systems. That the technology is still evolving is itself problematic; as users, we can all only discover in real time the unintended consequences of engineers’ best intentions. Apple’s approach to the subject attempts to be definitive. The operating system (IOS) written for their iPhones include an encryption technology that is entirely specific to the user key. An encrypted phone cannot be unlocked by the lay user without the necessary key. The government wants for some mechanism of access through device encryption to be baked into phone’s systems. Apple’s stated wish is to protect the interests of its customers. Apple’s advocates call any means through a slippery slope, a backdoor that will surely be subverted to corruption (du Lac and Nakashima).

            It’s worth noting that the right to privacy that Apple wishes to protect on its users’ behalf is not an actual constitutional right. The concept of legal privacy is implied in the 4^th Amendment protections from illegal search and the 5^th Amendment assurance of due process. The protections these amendments secure for personal liberty are inferred to apply to personal privacy by extension. The securing of those liberties however is balanced against possible prevailing government interests. For example, the language of the 4^th Amendment not only secures protections from improper search, it establishes that there are indeed probable cause conditions for proper search. Further, whether through the explanation of Miranda rights or through the necessary presentation of a court-issued warrant, the protections secured by the Bill of Rights are clearly designed to apply to the living. The concept of a blanket immunity, from a just investigation and that is enforceable after your death, is presented in neither the constitution’s articles nor its many amendments.

            What the constitution does present however, is as much an expression of your will as it is a check against it. The elected officials making law and naming judges do so as your (collective) proxy, as an expression of your (collective) intent. As much as the 4^th Amendment limits the reach of your representatives – your will – to the proper circumstances, it simultaneously secures the expression of your will under the necessary circumstances. In the two examples that underscore this discussion, Sutherland Springs and Bakersfield, the printed-on-parchment application of your constitutional will is to learn the full scope of potential genuine dangers, and to act on your behalf to secure your ongoing living, breathing, enjoyment of your civil liberties. Apple’s iPhone encryption schema prevents your constitutional agents from performing the responsibilities for which they’ve been chartered by your votes. Consumer spending is precluding consumer safety.

            The fact of there being an amount spent is a chilling aspect to the conversation. Payment is being made between private parties to secure immunity from societal obligations. Therein lies the distinction between a “right” and a “privilege”. The language of the Bill of Rights applies to all American citizens. The language of Apple’s End-User License Agreement applies only to owners of their product. As of 2014, the last date for which all figures cited have results available, that was estimated to be 62.6 million (Lella) of 318.5 million Americans (US Dept of Commerce), just 19.6 percent. Per comScore’s Mobile Metrix data, the average income of the average iPhone user is $85,000 per year (Lella), per the U.S. Department of Commerce the median income of the average American is $54,000 per year (DeNavas-Walt and Proctor). The framers of the Constitution intended for their concepts to apply to all Americans; Apple is comfortable with their interpretation of those concepts excluding two hundred and fifty-six million of them.

            That interpretation of Apple’s presents an additional distinction. The words of the constitution represent ideas that can adapt and evolve over time as society changes and grows. Their application may change depending on the where, or what, or who of a situation, but they have the potential for virtually universal application. The technology of the iPhone is represented by ones and zeroes that can adapt and evolve only insofar as Apple’s engineers are instructed. Their application is limited to the clear and distinct parameters of their programming. The existing IOS current security implementation is represented as an absolute safeguard, which itself invites conflict with the many grey areas inherent in the application of law. More troubling is the absence of absolute safety in the face of Apple’s claims. Following the corporate denial of public technical support following the Bakersfield murders, the FBI enlisted the help of a group of hackers. Apple’s impenetrable security was cracked by a check for $900,000 (Novak). When contacted by investigators after the Texas murders, the corporate response was less confrontational. The government had waited too long before asking for help, Apple’s representatives said. If their assistance had been requested within 48 hours, their engineers may have been able to exploit a window in the device’s fingerprint ID system (Barrett and Nakashima). Thus by their own admission, the “rights” to which iPhone users are entitled are subject to the constructions of the iPhone’s inventors.

            The solution sought by government is to look outside of those 48 hours, and beyond the conditions determined by corporate governance. As ordered by Magistrate Sheri Pym, the request of Apple is for a revised edition of their IOS; one that allows for locked devices to be accessed by cable in addition to touchscreen, and that imposes no limit on the number of access attempts possible. In investigation, the IOS on suspect iPhones would be “upgraded” to the alternate IOS to facilitate the unlocking of the phone. In this manner, iPhones would become as subject to the terms of a lawful search as would any other personal possession, as intended by law.

            The legal opposition by Apple is that the demand to create such an alternate edition of their IOS represents unprecedented overreach that would create for them an unreasonable burden. They ask in their legal brief, “What is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services?” (Zetter and Barrett) Asked hypothetically, the answer to such a fearmongering question would be, “the courts!” The same courts that in 2015 offered to let Apple access the San Bernadino device in their own labs, control the data provided to the FBI, and then destroy the remainder- an offer Apple refused (Dolan and Kim). Beyond the distraction of arguing about slippery slopes there is the claim of whether producing alterations creates an unsurmountable “unreasonable burden”. As recipients of multiple government product change requirements over the course of a century, America’s automakers would call this claim patently false. Specific to coding applications, Apple’s chief rival Microsoft was required twenty years ago to divorce its desktop and internet operating systems (United States vs Microsoft). More recently and more relevant , the massacre at a Las Vegas music festival highlighted the destructive consequence of “bump stocks” – an add-on component for weapons to defeat fire-rate limitation – and led to congressional calls to impact their production by blocking sales. To draw the parallel explicitly, an unintended private augmentation of citizens’ Second Amendment rights is being recognized as counter to the spirit of the protections involved. It is incumbent upon society to respond accordingly when the claiming of enhanced First Amendment freedoms by Apple customers creates a barrier between the whole of the Constitution’s protections and the whole of the citizenry.

            The conscientious objection set forth by Apple is the slippery slope represented by the governments ability to gain access to personal devices. This is not unreasonable; fear is a natural instinct. Revelations of NSA eavesdropping and the warrantless wiretapping of Americans have made it clear that elements of our government can operate without capable or responsible oversight. But the ideas of jurisdiction and constituency become very relevant here. Aside from perhaps some fraction of their 19.6% user base, no one has voted for or empowered Apple to fix the iniquities of government, or to replace them with their own manufactured iniquities. The proper responsibility for that correction lies in the hands of the voters who’ve produced such governance.

            The business of a nation of 325 million is no small feat, but it is the business of those 325 million to conduct. Ceding public authority to private institutions – even those publicly traded – is no less a slippery slope. Owners of private prisons provide a valuable service to their customers, but their business in conducted behind closed doors and their executives appear on no ballots. While Apple defends their engineering as an essential defense against government action against you, their stockpiling of an estimated 128 billion dollars in taxable revenue to offshore tax havens (Drucker and Powers) hoards for themselves the capacity for government’s support of you. Their business interests may presently align with the personal interests of many of their customers but they are not duly empowered or deputized branch of government. Their insistence on engineering social change has resulted in the creation of a product that creates an elite class, with an admission price beyond the range of most Americans. A product that promises safety beyond what is available to the poorer class, but then only insofar as the skills of Apple employees exceed their competitors. A product that precludes constitutional assurances to preserve, protect, and defend the whole, while elevating the protections and defenses of a mere moneyed fifth. Designed perhaps with the best intentions, the current IOS is a corrupted result and an illegal product; far less a victim of government intrusion than a function of corporate overreach. Speaking at Austin’s South by Southwest developer conference in 2016, President Obama addressed the crowd on the subject. As reported by Sam Machkovich for Ars Technica, he spoke to the likes of Apple CEO Tim Cook’s want for complete and indefinite invulnerability. “You cannot take an absolutist view on this,” he said. “If your view is strong encryption no matter what and we can and should create black boxes, that does not strike the balance that we’ve lived with for 200 or 300 years. And it’s fetishizing our phones above every other value. That can’t be the right answer.”

English 1C #73767
3 December 2017

Works Cited

Barrett, Devlin and Ellen Nakashima. Texas gunman’s iPhone could reignite FBI-Apple feud over encryption. 8 Nov 2017, Opposing Viewpoints in Context,
          link.galegroup.com/apps/doc/A513824810/OVIC?u=pasa19871&xid=e66077e6.
Benner, Katie. Why Texas Shooting Could Draw Apple Back Into Security Debate. 8 Nov 2017, www.nytimes.com/2017/11/08/technology/texas-gunman-iphone.html.
DeNavas-Walt, Carmen and Bernadette Proctor. Income and Poverty in the United States: 2014. Washington, DC: US Dept of Commerce, 2015, PDF.
          census.gov/content/dam/Census/library/publications/2015/demo/p60-252.pdf.
Dolan, Maura and Victoria Kim. Apple-FBI fight over iPhone encryption pits privacy against national security. 16 Feb 2016, www.latimes.com/business/la-me-fbi-apple-legal-
          20160219-story.html.
Drucker, Jesse and Simon Powers. After a Tax Crackdown, Apple Found A New Shelter for Its Profits, 6 Nov 2017, www.nytimes.com/2017/11/06/world/apple-taxes-jersey.html.
du Lac, J. Freedom and Ellen Nakashima. Tim Cook: U.S. government wants ‘something we consider too dangerous to create’. 17 Feb 2016, www.washingtonpost.com/news/post-
          nation/wp/2016/02/17/apple-ceo-the-u-s-government-wants-something-we-consider-too-dangerous-to-create/.
Lella, Adam. iPhone Users Earn Higher Income, Engage More on Apps than Android Users. 14 Aug 2014, ww.comscore.com/Insights/Infographics/iPhone-Users-Earn-Higher-Income-
          Engage-More-on-Apps-than-Android-Users.
Machkovech, Sam. Obama weighs in on Apple v. FBI. 11 March 2016, arstechnica.com/tech-policy/2016/03/obama-weighs-in-on-apple-v-fbi-you-cant-take-an-absolutist-view/.
Nakashima, Ellen. Apple vows to resist FBI demand to crack iPhone linked to San Bernardino attacks. 17 February 2016, www.washingtonpost.com/world/national-security/us-wants
          -apple-to-help-unlock-iphone-used-by-san-bernardino-shooter/2016/02/16/.
Novak, Matt. The FBI Paid $900,000 to Unlock the San Bernardino Terrorist’s iPhone. 8 May 2017, gizmodo.com/the-fbi-paid-900-000-to-unlock-the-san-bernardino-kill-1795010203.
Order Compelling Apple Inc. To Assist Agents in Search. No. ED 15-0451M. US District Court for DC. 16 Feb 2016. PDF, assets.documentcloud.org/documents/2714005/SB-Shooter-
          Order-Compelling-Apple-Asst-iPhone.pdf.
United States v. Microsoft Corp., 534 U.S. 952, 122 S. Ct. 350, 151 L. Ed. 2d 264 (Supreme Court 2001)
US Dept of Commerce. United States Census Bureau. 30 Jun 2014, www.census.gov/popclock/.
Zetter, Kim and Brian Barrett. Apple to FBI: You Can’t Force Us to Hack the San Bernardino iPhone. 25 February 2016, www.wired.com/2016/02/apple-brief-fbi-response-iphone/.