Apple lawyer warns government on road to 'limitless' power in iPhone encryption fight
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Apple lawyer Ted Olson, who some view as one of the most prominent practicing attorneys in the U.S., on Friday said the government appears to be on the path to "limitless" power in its court battle with Apple.
In an interview with CNN Money's Laurie Segall, Olson said there are serious implications to an FBI victory over Apple in its case to force the company's assistance in unlocking an iPhone used by San Bernardino terrorist Syed Rizwan Farook.
Last week, a federal magistrate judge issued an order compelling Apple to write purposely vulnerable code in hopes of defeating a passcode lock on Farook's iPhone 5c, leaving it open to a brute-force attack. The Department of Justice cites as its legal foundation the All Writs Act of 1789, a statute granting federal courts sweeping authority if no other judicial options are available. It was learned this week that the FBI is asserting All Writs to compel decryption assistance in at least nine other cases involving iOS devices.
Olson warned dangerous precedent could be set if the DOJ successfully argues its case on this point, and suggested government agencies might later leverage the same tools to compel the dedication of resources to creating bespoke systems capable of tracking people's movements or even listening in on their conversations.
"You can imagine every different law enforcement official telling Apple we want a new product to get into something," Olson said. "Even a state judge could order Apple to build something. There's no stopping point. That would lead to a police state."
The slippery slope argument was one posed in Apple's official response to last week's court order, and later echoed by CEO Tim Cook in an extended interview with ABC News. Neither the FBI nor Apple know if there is indeed actionable data to be extracted from the device, though San Bernardino Police Chief Jarrod Burguan seems to think that possibility is unlikely. In any case, the FBI is forcing Apple's hand and Apple is pushing back.
Addressing concerns that Apple's fight for data privacy stands as a roadblock to thwarting impending terrorist actions, Olson said "we must do everything possible" to defuse such threats and the perpetrators behind them, but not at the expense of basic civil rights.
"We have got to stop someplace, we cannot break someone's back to get them to tell somebody where somebody else is," he said. "So if we're saying there's a serious threat, throw out the Constitution in order to prevent that threat, where do we draw the line?"
Olson also intimated that a secure device ecosystem, which Apple publicly touts as a keystone iOS feature, speaks to the supposed limits of government access.
"It is not Orwellian here, you know, where big brother can see anything you want," he said. "Apple's constantly trying to improve its iPhones to serve you, the public — and the hundreds of millions of people that trust Apple to do this — to provide security so that people can't hack in and find out where your children are, or what your medical records are. So if Apple continues to do that, it's just a point at which the government just can't get into your soul," Olson said.
Despite what Apple claims is at stake, Olson does not believe the company would defy a Supreme Court ruling in favor of the FBI. He pointed out, however, that there's a long way to go before the case reaches such heights.