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Apple court case takes a bite on liberty

Extremism in government

A court’s order for Apple to assist the FBI in hacking a terrorist’s iPhone is about more than security or privacy. It also raises questions about coercing individuals or companies to act on behalf of government.

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This July 27, 2014, photo provided by U.S. Customs and Border Protection shows Tashfeen Malik, left, and Syed Farook, as they passed through O'Hare International Airport in Chicago. A U.S. magistrate has ordered Apple to help the Obama administration hack into an iPhone belonging to one of the shooters in San Bernardino, Calif. The ruling by Judge Sheri Pym on Feb. 16 requires Apple to supply highly specialized software the FBI can load onto the phone to cripple a security encryption feature that erases data after too many unsuccessful unlocking attempts. Federal prosecutors told the judge they can’t access a county-owned work phone used by Farook because they don’t know his passcode.

U.S. Customs and Border Protection via AP

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Apple has made a high-profile challenge to a court order saying that it assist the FBI in extracting data from the iPhone used by one of the San Bernardino terrorists. The data might be useful to prevent a similar attack. The FBI claims it does not have the hacking skills to crack the phone’s passcode. Apple claims it does not have software to do so. Nor does the company want to jeopardize the security and privacy of its phone users by writing the hacking software in case of a leak.

On the surface, resolving this case might simply require finding the right balance between security and privacy. But there is far more to it than that.

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Ultimately, the courts and Apple might arrange a narrowly tailored and voluntary solution to crack only this particular phone and with some guarantee that the case will not open a floodgate of demands by government for easy access (a “backdoor”) to the phones of any criminal. More broadly, Congress and the White House might quickly write a law to make it easier to resolve such dilemmas posed by today’s advances in securing digital information. Between the wisdom of the three branches of government and Silicon Valley’s innovation genius, a compromise can be found.

A deeper concern in the case is that it represents an example of government imposition on individuals or companies to actively participate in solving a problem against their conscience. The court order does not assume Apple has done anything wrong or has caused harm. In fact, Apple has been very cooperative in providing information about the attacker from his iCloud account. But the court and FBI insist Apple join it as a partner and design software that will break into its phones.

As Tim Cook, chief operating officer of Apple, put it: “The US government has asked us for something we simply do not have.” And if Apple were able to crack its phones, it would be violating a trust with its users and its own principles.

To compel Apple to act, the court has relied on a 1789 law that allows courts to issue orders “agreeable to the usages and principles of law.” Yet one principle of law is that a democratic constitution preserve freedom by restricting the coercive powers of government. Individuals can be compelled to attend school or serve in the military or on a jury. Or if they participate in a public “good,” such as using roads, they can be forced to buy car insurance or abide by safety rules. But basic freedom can be eroded if an individual or corporation is punished for simply doing nothing, such as not helping government fulfill its duties.

The Apple case has an echo is the court cases involving the 2010 Affordable Care Act. Under that law, most Americans have had to buy private health insurance or face a stiff financial cost. Religious charities, such as one run by Catholic nuns, are being compelled to participate in the law’s efforts to provide contraceptives to employees. And many people who seek health through alternative systems are being denied an exemption from the act.

The goals of the health-care law are noble ones and worthy of support, but some of its methods trample on basic freedom. Should individuals be directly compelled to engage in an activity deemed to be a violation of conscience?

As in the court decisions so far involving “Obamacare,” the court in the Apple case believes it is not imposing an “unreasonable burden” on the company. Indeed, a technical breakthrough might eventually enable the FBI to open the late terrorist’s iPhone. But as this case winds through the courts, its impact must be seen as more than one of fighting terrorism or protecting personal privacy. It also involves a rising tendency for government to mandate intervention by a private party, taking away the kind of choices that are critical for dignity, self-government, and autonomy. That’s a primary security that should not be easily hacked.