FBI v. Apple — can doesn’t mean should obey.

FBI v. Apple — can doesn’t mean should obey.

The FBI investigates a grizzly murder. You are a bank president. The murderer stored his phone book in your bank’s safety deposit box, the code for which is encrypted with copyrighted proprietary software, before he committed the murder. The FBI demands that you provide it with the master code for the box, which can be used to unlock other boxes, too. You can give the FBI the code, but should you? Apple CEO Tim Cook is asking himself the same question, his answer is rightly “no.”

On February 14, 2016, United States Magistrate Judge Sheri Pym ordered Apple to provide the FBI the means to circumvent the iPhone 5c’s encryption technology. That way, the FBI can obtain Mr. Syed Rizwan Farook’s phone contacts to see who else, if anyone, conspired with him on the December 2, 2015 killings. So the FBI’s endgame is understandable, justified, and a matter of public safety. At the same time, Judge Pym’s February order is constitutionally questionable, for these reasons.

First, there are less invasive and more reasonable means of obtaining the evidence. While the February order is ostensibly based on the “All Writs Act,” it was issued to give effect to a warrant directing Apple to give the FBI “reasonable technical assistance.” If the February order permits the FBI to unreasonably search and seize Apple’s property, it is constitutionally defective under the Fourth Amendment. Whether the ordered search is unreasonable depends on if there are other less invasive means of gathering the evidence.

Here, there are at least three other less invasive methods. First – the FBI could back its way into Mr. Farook’s contact list by getting from Verizon, his cell phone carrier, phone calls, texts, or e-mails to or from his phone. Second — Apple can provide the FBI the desired information from the Mr. Farook’s iPhone. This would be akin to you, as the bank president, copying the murderer’s phone book and providing copies to the FBI. Third – have the court review Mr. Farook’s phone information in camera, that is behind closed doors, and cross-reference that information with the phone records around the time of the killings to determine relevance. Once that is done, some or all of the phone’s information can be produced to the FBI.

Second, there is a strong presumption in federal copyright law against allowing circumvention of encrypted copyrighted software. The Digital Millennium Copyright Act (“DMCA”) forbids devices from being made, imported, or marketed to the public which are primarily designed to circumvent technology that controls access to copyrighted content, such as Apple’s software. Because Apple manufactures the phone, and owns the copyrights to the software located within, Apple is free to circumvent it’s own technology under the DMCA. But Apple shouldn’t be forced to so by the FBI. That’s because the DMCA shows how important copyright encryption is to content creators like Apple, to Congress, and the consuming public. As a result, Apple’s interest in protecting the integrity of its iPhone 5c — and potentially other generations of iPhone – isn’t mere “marketing strategy,” as stated by the FBI.

Third, there is no telling how far the government will go if the February order stands without being overturned. According to Apple, the FBI has sought to access to 11 other iPhones since September, and states attorney generals are biting at the bit to do the same. Given this rising tide, the elephant in the room is a lack of trust in what the government will do with the new path it is foraging. While some 51% of Americans apparently side with the FBI on the unlocking of Mr. Farook’s iPhone 5c, American trust in the federal government in general is at an historical low of 19%, according to NPR.

Seen more broadly, the magistrate judge’s February order can be the first rock in an Orwellian rockslide where the government requires all phone makers to make such backdoors to the encrypted software as a matter of policy. The unstated and yet real concern with such a domino effect is that executive agencies will not only use this information for criminal investigation purposes, but to violate the Constitutional and privacy rights of Americans. These concerns aren’t academic. Nor are they paranoid. President Richard Nixon used the Internal Revenue Service go after American citizens he deemed to be his enemies, which led to his articles of impeachment. There is no telling what another Nixon would do with such unfettered power. Thus, Mr. Cook’s concern about the magistrate’s order setting “dangerous precedent” should not be taken lightly.

In the end, it is a shame that Apple and the FBI didn’t partner up outside of court to craft a mutually beneficial solution that would maintain the integrity of Apple’s iPhone 5c and also give FBI the evidence it needs. But amicable solutions like this won’t happen as long as executive agencies like the FBI downplay legitimate concerns of corporate citizens like Apple as “marketing strategy,” and then pursue heavy-handed discovery tactics not because they should and need to – but because they can. It is up the judiciary to stop them by ensuring that the government’s right to know is balanced against citizens’ legitimate intellectual property and Constitutional rights. In the meantime, just because Apple can obey the likely unconstitutional February order doesn’t mean it should. Instead, Apple should get a higher court to overturn and limit it.

Grandma’s going to jail for digital trespassing?

Grandma’s going to jail for digital trespassing?

“No digital trespassing! Violators will be sued. Survivors will be sued again!” Ever seen that sign? Not likely. That’s because, technically, there is no law against digital trespassing¬†per se. This occurs when your grandma’s new universal remote control climbs over, figuratively speaking, the encryption security fence on copyrighted content, such as the software to her old garage opener, so as to enable communication between the new control and old garage door opener. And yet some copyright owners want to hold your grandma civilly or even criminally liable under federal law for such trespassing. Allowing them to bust grandma would be an unwise expansion of their copyright monopoly.

Say you buy your grandma a garage door opener made by Acme Inc. The garage door opener comes with a control. Now, granny has a lot of controls, and she is too old to futz around with a control for her television, one for her radio, and one for her garage. Given you love your grandma and want to make her happy, you buy her Bling Inc.’s universal remote control. Bling’s one size fits all control circumvents the encryption technology fence on Acme’s garage door opener. In so doing, Bling’s remote is now able to gain access to Acme’s copyrighted software, thereby enabling interoperability. Otherwise, they wouldn’t be able to communicate because Bling’s remote would be speaking kilometers per hour to the miles per hour garage door opener without a translation protocol.

Does Acme have a claim for digital trespass against Bling or your grandmother? In the view of some copyright holders, the answer is yes. That’s because, in their view, Bling’s universal remote control has enabled your grandma to violate the anti-circumvention provisions of what is called the Digital Millennium Copyright Act (“DMCA”). This is so even if neither Bling nor your grandma infringe, or otherwise induce infringement of, Acme’s copyright in the source code by copying, reproducing, or otherwise publishing it. Under this view, there is a per se — automatic — violation of the DMCA whenever Bling or your grandma trespass, regardless of the circumstances.

But in the view of federal courts, there is no per se rule against digital trespassing under the DMCA. Bling’s universal remote control allows for what is called interoperability between grandma’s different devices, which is an efficiency that Congress didn’t want to do away with when passing the DMCA. In fact, the DMCA explicitly states as much in Section 1201(f)(1), in case you want to bore yourself by looking it up. What is more, courts have dismissed claims brought under the DMCA where the plaintiff is only able to allege or prove digital trespass, no corresponding copyright infringement or conscious inducement of the same.

Then why do companies like Acme file lawsuits seeking redress for digital trespassing? There are various reasons. One is security. Closed software universes, like Apple’s, protect better against viruses that can more easily attack porous systems that are liberal in their approaches to interoperability. This is one of the reasons why Apple’s computers are hacked less often than personal computers. The second is the fear that digital trespassers will pirate copyrighted content. The third is lost revenues. Conversion technology which allows newer kilometers per hour devices to communicate with older miles per hour ones via a translation protocol cost companies money. Rather than forcing granny to buy a new television in order for her to gain access to content protected by new encryption technology, conversion technology enables her old television to communicate with the new encrypted content. In the process, new technology sales suffer.

In the end, your 92 year old grandma isn’t going to jail! One reason is that her and her friends pack heat with silencers. The other is that the DMCA didn’t expand the scope of a copyright holder’s monopoly, and it expressly says that. However, it may take some more court decisions to make that clear to aggressive copyright holders who seek to pursue granny for digital trespass merely because she uses conversion technology to watch Netflix’s “Just Call Saul” on an old outdated screen. Otherwise, grandma’s crew might just shoot them all.