Congress Must Act to Resolve Issues in Apple-FBI iPhone Deadlock

By Wayne Rash  |  Posted 2016-03-02 Print this article Print
Apple Court Ruling

That blunder was also revealed in the testimony before the Judiciary committee when Comey admitted that the FBI had asked the administrator for the county-owned iPhone to change the password for the Apple ID, a process that ensured that the phone couldn’t back itself up to Apple’s cloud services. Had the phone been backed up, gaining access to the contents wouldn’t have required a court order.

The good news to come out of all of this, assuming getting Congress involved can be considered good news, is that the Constitutional weakness of depending on the All Writs Act is clearly revealed. The act itself exists for a legitimate purpose, which is to give judges broad latitude in issuing orders to produce evidence or to compel other actions. And the fact that it’s been around since 1789 is really not relevant.

But the issue goes beyond the All Writs Act. As Judge Orenstein points out, Congress has had several opportunities to make it clear that computer makers could be required to produce evidence through cooperation with the government, but chose not to do so.

During this time, such a requirement was put in place for telephone companies, for example, and for other communications services. Congress considered making computer makers subject to such demands, but it didn't.

So right now, the ball is in Congress’ court and it needs to change the law. This is the Judiciary committee's opportunity to take action. But first Congress must determine how it will strike a balance between the need for security and the right to privacy. What Congress will have to decide is whether the right to privacy provided in the Constitution outweighs the need for security when it comes to mobile phones.

While the FBI can attempt to stretch the meaning of the All Writs Act to include forcing Apple to write new software to perform acts against its own interests, and while Apple can maintain that it’s acting within the framework of the Constitution and for the good of democracy in refusing to comply with a court order, this is really a question for Congress.

So now the question becomes whether a dysfunctional, virtually deadlocked Congress can manage to get its act together to solve this problem, or must we wait a year until another election passes for another attempt? Considering that the members of the Judiciary Committee were clearly skeptical of the FBI's position and to some extent of Apple and its motives, the answer appears to be that the Judiciary Committee, at least, is ready to act.

But whether Congress as a whole will soon consider any legislation to changes the rules is another matter. This is an election year, after all, and everything depends on getting reelected.

Maybe if there’s an outcry from constituents then Congress will equate reelection with solving this problem. But that means that someone in the electorate has to care enough to complain. Perhaps that would be easier if both sides in this controversy decided to tell the truth.



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