Tim Cook, CEO of Apple, Inc. turned down the FBI’s demand using a 1789 federal ordinance to build a “backdoor” into iPhones allowing law enforcement to defeat encryption as he explained in a “Customer Letter” this morning posted to the company’s website.
Apple’s letter kicks off the highest profile defense of the U.S. Constitution’s Fourth Amendment we are likely to see in our lifetimes.
The federal government’s latest demands are directly related to the San Bernadino shootings late last year in Southern California, which were perpetuated by a county government employee on his co-workers, and whose wife allegedly pledged allegiance to ISIS during the attacks.
“We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country,” said Cook.
Without saying it, Cook is invoking the Fourth Amendment on behalf of all of Apple’s one billion mobile device users.
U.S. Presidents have often talked about exporting freedom to the world, but it took a private enterprise to make it happen for the one in seven human beings using Apple devices.
A smaller enterprise would’ve folded long ago, but Apple has always maintained a large and active legal department.
And Apple is the largest company in the world today too.
Cook’s claim is that the Federal Bureau of Investigation is invoking the All Writs Act of 1789, which was drafted early in US history and remains today as one of the basic functions of all Federal courts, without going back to Congress for any specific legislation or asking for a Constitutional amendment, which might be necessary to bypass the 4th Amendment’s protections for citizens. The Act has been amended since then, but is largely in its original form.
The All Writs Act acts as a “catch all” act of congress enabling, “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”
While nobody could ever “fill the shoes” of legendary Apple founder Steve Jobs, current CEO Tim Cook has grown the business side of Apple since the passing of Jobs, and he seems uniquely situated for what will likely grow into the largest public fight of his lifetime – or perhaps any of ours – to determine if the Federal government can use its influence to dictate the start of a surveillance state upon the world’s largest corporation.
Cook is both a native of Alabama and an openly gay man who only recently celebrated marriage equality last year.
He speaks both the language of civil rights, and the uniquely Southern vocabulary of federal overreach fluently, and noted both conclusion of his Customer Letter:
If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.
Opposing this order is not something we take lightly. We feel we must speak up in the face of what we see as an overreach by the U.S. government.
We are challenging the FBI’s demands with the deepest respect for American democracy and a love of our country. We believe it would be in the best interest of everyone to step back and consider the implications.
While we believe the FBI’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.
The FBI’s plan to intrude on our nation’s privacy en masse could erode America’s standing as a country with rule of law, when the constraints of the 4th Amendment are considered.
Courts have found general search programs to be precisely the kinds of law enforcement activities prohibited by our Bill of Rights, and wisely implemented by our founders who personally witnessed the unlimited power of the state to intrude into individual privacy.
Apple and Tim Cook, its CEO, both know all too well that legislating or demanding entry into Apple’s iOS mobile operating system could precipitate users switching handsets anyhow, turning the FBI’s demand into a dry hole.
Without significant changes to America’s Constitution, it’s tough to see how the FBI has any chance of winning a fair fight in court, but it’s easy to see how all Americans, and – considering what’s at stake – what all of humanity could lose if the most valuable enterprise on our planet succumbs to government control.
Ed. Note: Author owns an iPad and Publisher Carlos Miller owns an iPhone. Neither own stock in Apple.