Orin Kerr has been writing for the Washington Post about the All Writs Act, the law that the FBI is using to order Apple’s assistance. If you are interested, start with Part One.
From Part Two, this quote:
As I mentioned in my first post, I don’t know which side should win. Part of the reason is that I’m waiting on development of the facts. But as this post has showed, part of the problem is that the scope of authority under the AWA is just very unclear as applied to the Apple case. This case is like a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do.
We are definitely exploring unknown territory.
This isn’t a crazy hard law school case. The FBI chose this case because they want to expand their reach and power over average American citizens. They chose the case and refused to honor Apple’s request to keep this case seamed because they knew that their claim would have the added benefit of the “bogey man” effect when arguing in the court of public opinion.
This has nothing to do with encryption or homeland security. This is the attempt of a government agency to overreach its powers in the guise of keeping his safe.
I agree. The core of the case is very simple. It just looks huge because the government is overreaching and the implications of that are enormous.
It is well-established that the government cannot compel speech. It is well-established that software is speech. Therefore the government cannot compel Apple to write software.
Therefore the order that the court just gave Apple is unconstitutional.
Also, there is a law that says the government cannot compel telecommunications providers to design their devices in a particular way. So the government cannot compel Apple to design insecure devices, even if that would not require the writing of software.
I think the biggest result of this will be the education of the public about encryption, and Apple will lock down their devices even further. There is already talk that the recovery mode is going away, and that iCloud backups would be encrypted on the device before uploading so that Apple doesn’t have any data to be subpoenaed. Because iCloud backups are the most insecure part of iPhone right now. Whether subpoenaed by government or hacked into by bad actors.