"Where there is no vision, the people perish: but he that keepeth the law, happy is he."
-- Proverbs 29:18, King James Bible (KJV)

Saturday, February 20, 2016

Donald Trump Has it Right and Calls for a Boycott of Apple Products

Donald Trump Calls for Boycott of Apple in Dispute With Government is the headline at the New York Times.

Trump is an Apple and Samsung user but says he will ditch Apple if they do not get this national security matter right.

We note that the choice of wording of the New York Times headline above is a good example of what we call "twisted journalism".

This is not an Apple "dispute" with the government.

Rather, it is the failure of Apple, Inc. to abide by a court order, which Apple thinks it is big enough to pull off under the theory that different rules apply to them than to normal citizens, and indeed, they have called on a bunch of high-priced legal hired guns to help them with the dirty work. They have plenty of money for that, but none for the cause of national security.

At the same time, the increasingly weak Obama administration -- for which our respect has plummeted in recent years because of its timid leadership -- has already narrowed down their request to eliminate any possible blanket data intrusion dangers to anyone. See US Would Let Apple Keep Software to Help FBI Hack iPhone. See also our previous posting on New York Times Editorial Board Wrong Once Again As Regards Apple, Inc. Failure to Abide by Court Order, in which we previously raised some of the points found there.

Sane users realize that they are not important enough to be subjected to surveillance and that the odds that normal citizens have anything to fear from government "hacking" of their electronics is next to zero. Surveillance is directed toward criminal activities, and well it should be.

During my Stanford Law School days, I was the assistant, prior to his untimely passage, to Herbert Packer, author of The Criminal Sanction, who saw criminal law as the tension between law enforcement needs (the "crime control" model) and civil rights considerations (the "due process" model). This conflict is nothing new. The Apple case really raises no great new issues, contrary to the mainstream media presentation of the case. There is apt precedent.

Several sources online have pointed out that about 70 phone hacking requests by the government on the basis of the All Writs Act have been carried out since 2008 (about 10 cases a year). Why Apple is now refusing to comply is anyone's guess, but at 10 cases a year, the odds that any U.S. inhabitant's privacy could be "intruded" in any given year is 10 divided by 300 million, i.e. 1 in 30 million, or, if you take the world's population, 10 divided by 7 billion, or 1 in 700 million.

TechCrunch has a totally misleading article at No, Apple Has Not Unlocked 70 iPhones For Law Enforcement, trying to make a big deal out of the difference between Apple "extracting data" from a phone as opposed to "unlocking" a phone, a distinction which we see as having zero legal relevance. The fact is that the All Writs Act has been used for many years, and very sparingly so by the government, to force the hacking of a specific phone, in our view a quite legitimate law enforcement interest.

That such an outcry about the invasion of civil rights has been raised can be attributable to the fact that mainstream media mostly have nothing more sensible to do than to stir up trouble about marginal issues of society, rather than concentrating on modern problems and their solutions.

The phone in question belongs to an employer who has assented to that hacking, so it is not the phone owner who feels threatened in its civil liberties but rather the phone manufacturer who sees a threat to its sale, or, more correctly in the case of Apple, who manufacture nothing, it is a phone marketing conglomerate that is raising civil rights issues for purely commercial reasons, without any concern for the nation's security interests.

Indeed, it is in fact quite possible that even if the phone in question here would be hacked, that nothing of any value will be found. Hence, this could all just be a tempest in a teapot (American English) viz. storm in a teacup (British English version), or as Shakespeare (Christopher Marlowe) wrote, all "sound and fury, signifying nothing".

The only people who stand to reap a profit from their refusal to carry out the court order are a few executives and stockholders at Apple, for whom this is all free advertising and more money in the bank. The rest of the world gains nothing, and stands to lose a lot, if national security is actually at stake.

We might add that making Apple executives civil rights heroes in this case has to be about the most ridiculous thing we have heard in a long time. A tough prosecutor might indeed charge them with "obstruction of justice", because a phone that can not be unencrypted without the direct help of the commercial enterprises who markets it, and who refuses to unlock such a phone, is therefore a phone intentionally designed and made "to alter, conceal and/or destroy physical evidence", and that is the material test of the obstruction of justice charge. Not heroes, but candidates for jail.

Addendum: The jail option was discussed at CNN Money in Apple's next move in its privacy fight against the FBI, concentrating there, however, on the idea that Apple could be held in contempt of court for non-compliance with a court order, noting that the person who would be jailed in such a case would be the one who makes the ultimate decision not to comply with the court order.