FBI’s fight against Apple violates more than trust

Ellie Ritter

On Tuesday, Feb. 16, the Federal Bureau of Investigation ordered Apple, the technology company behind the iPhone, to help unlock an iPhone used by one of the attackers who killed 14 people in San Bernardino, Ca., last December. The next day, Apple CEO Tim Cook published a letter stating the company’s opposition to the federal ruling, saying that it would hurt “well-meaning and law-abiding citizens who rely on companies like Apple to protect their data.”

Cook is right – the order would be a huge infringement upon people’s privacy and could pave the road for other countries, like China, to do the same. But there’s more to it than that: the order is simply illegal. Despite any legal tricks the FBI tries to use, the order violates basic constitutional rights.

Essentially, the FBI wants to examine the attacker’s phone to look for evidence that he and his wife, who carried out the San Bernardino shooting, planned the attack with ISIS. The iPhone, however, which is a 5c version from 2013, is locked by a passcode. Due to Apple’s security features, entering an incorrect passcode 10 times erases all the data on the phone.

The FBI wants Apple to develop software to bypass that feature. They do not want Apple to unlock the phone or retrieve the data – they only want to be able to enter an unlimited amount of passwords until they get it right, without the potential of losing all the data.

The demand is a sick, almost laughable stretch of logic. Anyone with access to the software – including the government – can unlock any iPhone in their possession. That creates the possibility that the software could fall into the wrong hands – even if those hands belong to the government. All it takes is one bad seed in the bunch to turn this “backdoor” into a national security threat. 

While it’s important for the government to be able to protect its people and examine all threats to a country’s safety, they cannot do so by infringing on people’s personal property. In an interview, Cook said that citizens should not have to sacrifice personal privacy for national security. And if Apple is forced to create this software, the privacy of millions is put at risk.

All ideological arguments aside, the order simply violates the Constitution itself.

The FBI is basing their request upon the All Writs Act of 1789. The law – a popular one for government officials trying to get private data – allows courts established by Congress to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Basically, that means the FBI can force Apple to do whatever it needs, so long as it is not an “undue burden.” Creating malware that practically unwinds all of the company’s core security features, undermines its core values and requires a lot of time and funding, however, can certainly be deemed a burden.

Even if that burden is deemed not undue, there is still a greater legal issue at hand that almost no one has yet to recognize. The order – even with the All Writs Act – goes against the 13th amendment completely.

Yes, the amendment that abolished slavery  applies here. It also prohibited “involuntary servitude” for any party that has not been convicted of a crime. In this case, the party, Apple, is essentially being forced to serve the government, even though it is in no way directly related to the attack in San Bernardino.

Because the company and the attacks are unrelated , the government cannot require Apple to cooperate involuntarily. The All Writs Act does not apply, as it not only was enacted before the 13th amendment (therefore making it outdated), but it also cannot be used above the Constitution, since the Constitution is the highest form of the law.

John McAfee, a famed cybersecurity expert and founder of the McAfee antivirus software, offered on Thursday to decrypt the phone for the FBI for free. By doing so, the FBI won’t need to force Apple to create the backdoor – making the All Writs Act even more void. His offer is safe, effective, and would get the government what they want. Better yet, it won’t give them the power to become the biggest hackers in the entire country.

The FBI’s demand is certainly unacceptable. But while the order is an infringement on privacy, there is a much more pertinent issue at hand. The government cannot force Apple to serve its purposes – no matter how good or bad those purposes are – because it goes against the 13th amendment. There is no way to get around a Constitutional amendment, so find another way.