Why Apple Must Win Vs. The FBI

If Apple, or any digital device or Operating System provider has to write code that breaks into their own phones and then present that code in open court to prove that the code is clean and has not planted digital evidence, then the door is wide open for bad actors to do as they please to our devices. No one can play whack a mole with code fast enough to keep them out.

All that said, there is a possibly better option if we only had lawmakers who cared more about solutions than grandstanding.  We have 3 Senators running for President and not one has moved a fingernail to even begin to deal with this issue let alone find a solution. That is sad in and of itself.

What should they propose ? As I wrote in a previous blog post, lawmakers should be working very quickly to write and get passed a law that limits the scope of what Apple must respond to.  Here is what I suggested:

“A company can only be compelled to remove any type of security or encryption from a smartphone or tablet,  and only a smartphone or tablet,  under the following circumstances:

  1. There has been an event, with casualties, that has been declared an Act of Terrorism
  2. There is reason to believe that the smartphone was possessed by a participant in the Act of Terrorism.
  3. The smartphone must have been on premise during the event.
  4. The  terrorist who was in possession of the smartphone or tablet must be deceased.

It would seem to me that if such a law could be proposed and passed, then the All Writs Act, currently at the heart of the Apple vs FBI dispute would no longer apply.  By eliminating the All Writs Act as a catch all then we significantly flatten out the slippery slope.  I’m not saying we will completely eliminate all privacy issues. We won’t. I’m not saying there isn’t risk of unintended consequences. There always are when we ask politicians to fix complex problems.

More importantly, passing this law or something similar gives both Apple and the FBI a means to resolve the dilemma they face.  Apple could comply with at least the hope that the circumstances under which they will be forced to create software to open a device is strictly limited in scope.

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