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posted on 24 February 2016

Opinion: Apple, Encryption, National Security And Terrorism!

by Michael Haltman

The law, politics, business and national security don't always have a place in the same story but...

In the case of the San Bernardino terrorists and the secrets that may be stored on their the Apple iPhones, they do!

Here's a synopsis:

'Apple said on Wednesday that it would oppose and challenge a federal court order to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.

On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Mr. Farook's co-workers at a holiday gathering.

Judge Pym ordered Apple to build special software that would essentially act as a skeleton key capable of unlocking the phone.

But hours later, in a statement by its chief executive, Timothy D. Cook, Apple announced its refusal to comply. The move sets up a legal showdown between the company, which says it is eager to protect the privacy of its customers, and the law enforcement authorities, who say that new encryption technologies hamper their ability to prevent and solve crime....' (Source)

On appeal Apple, as it should, will likely lose this case but by the time that they do whatever actionable information is on the phones of the two terrorists will likely be rendered useless.

Apple CEO Tim Cook, by objecting to the order, is taking what many would consider to be the logical move vis a vis current Apple customers, shareholders, his Silicon Valley constituency and, sad to say, company marketing.

It's a complicated legal issue no doubt, but, at what point do the needs of the many outweigh the needs of the few (Mr. Spock)? In other words when does national security become the primary concern of some of our citizens and business leaders if the solution is within the law?

'...The legal issues are complicated. They involve statutory interpretation, rather than constitutional rights, and they could end up before the Supreme Court.

As Apple noted, the F.B.I., instead of asking Congress to pass legislation resolving the encryption fight, has proposed what appears to be a novel reading of the All Writs Act of 1789.

The law lets judges "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The government says the law gives broad latitude to judges to require "third parties" to execute court orders. It has cited, among other cases, a 1977 ruling requiring phone companies to help set up a pen register, a device that records all numbers called from a particular phone line...' (Source)

Thoughts? Please leave them in the comments below.


Michael Haltman is President of Hallmark Abstract Service in New York. He can be reached at mhaltman@hallmarkabstractllc.com.

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