Apple vs. FBI: Top 5 distortions, delusions, and downright lies

The FBI's attempt to order Apple to help them crack an iPhone has brought out the hysterical in many of us. The road to bad policy is paved with false information, and here are five of the biggest misconceptions.

In his letter to customers on the matter, Apple CEO Tim Cook said: "They have asked us to build a backdoor to the iPhone." There's no agreed-upon Webster's definition of the word "backdoor", but clearly Apple wants us to believe that they are being asked to weaken everyone's copy of iOS.

Cook said: "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 FBI has asked the court to order Apple to help backdoor one individual phone not iOS so you could say the assertion about a backdoor to the iPhone is false. What worries Apple is the precedent -- law enforcement has many iPhones involved in cases around the U.S.

Another misleading quote from Apple: "Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks -- from restaurants and banks to stores and homes."

In fact, the government has stated that the installation of the software and the attempt to unlock the phone could be performed on Apple's premises. The modified copy of iOS need not leave those premises. It need not ever touch a network connected to the Internet. After the attempt at hacking and before handing the iPhone back to the FBI, Apple could install a commercial iOS version on it. At that point it would be installed on exactly no iPhones anywhere.

"It won't end with this, the government will be back for more," Cook wrote in the letter.

As a general rule this is something to worry about with governments. But not in this case. The government has bent over backwards to be as deferential to Apple's interests as possible while obtaining the contents of the phone. The FBI doesn't want to keep the software, it will allow the operations to happen on Apple property, and -- most importantly -- it isn't weakening the security of any Apple customers. Normal iPhones will remain as secure as they ever have been.

This is not a recipe for an ever-escalating assault on our rights. In fact, here's a question to ask yourself: Whose rights are compromised by what the FBI proposes? Not the owner of the phone, the County of San Bernardino, which has consented to the FBI plan.

It's worth stepping back for a moment and looking at the real world. If the police can convince a judge that they have reasonable suspicion that you have committed a crime they can get a judge to approve a search warrant that will allow the police to enter your home and go through your personal belongings (including your computers). If your private papers are in a safe and you don't open it for them, they can break it open. It's always been this way and it's not especially controversial.

We have the Fourth Amendment to the Constitution and a lot of case law to provide checks on the power: the police have to specify what they're looking for; they must specify the places to be searched; if they violate the warrant or don't have one, the evidence can be excluded at trial.

Given this, is the ability for the authorities, with a proper search warrant (or, as in this case, permission of the phone's owner), to do what's necessary to obtain the contents of the phone, really all that offensive?

I was bothered by this too, and still am somewhat bothered, but it appears to be false. First, as you've undoubtedly read already, the order is pursuant to the All Writs Act (28 U.S. Code § 1651 -- click for full text, a mere 53 words), the original form of which was part of the Judiciary Act of 1789, passed by the First Congress.

There is one pretty on-point precedent under that act, United States v. New York Telephone Co. 434 U.S. 159 (1977), in which New York Telephone was ordered to assist the government in placing a "pen register" on its systems to see who was calling a certain suspected number. (If "pen register" rings a bell, it's because it's the same concept used by the government to justify the mobile phone metadata program leaked by Edward Snowden.)

This case is an incoherent mess, says Orin Kerr, professor of law, writing on the Washington Post. The Supreme Court ruled for the government, although their reasoning and the applicability to current circumstances are unclear.

The New York Telephone case did make clear that company is entitled to compensation. New York Telephone apparently had standard rates for this sort of thing, but what would Apple charge? I can only guess that they would pick some insanely high hourly rate and charge based on that.