Rob Singer speaks to BLJ readers on the FBI/Apple dispute

Rob Singer, shares insights from the perspective of a criminal attorney on the FBI/Apple dispute.

Legal Battle Over Cell Phone Privacy in the Digital Age

The clash between Apple CEO Tim Cook and FBI Director Jim Comey over whether Apple should be required, as ordered by a federal court, to provide the FBI with a means to access encrypted data held on the cell phone of dead terrorist Syed Farook is nothing new.

It is the latest in a series of battles that pits Apple against the government over the extent of privacy and a technology company’s requirement to cooperate with law enforcement in the digital age.

Cook and Comey each have valid positions. Cook, as the representative of a technology company whose brand is associated with privacy and whose customers purchase iPhones based on that promise of privacy, has a point when he objects to being forced to build a method to defeat the very software upon which that promise is made. Comey, whose job it is to protect American citizens from criminals and terrorists who avail themselves of this technology to hide their activities, has a point when he objects to Apple opposing cooperating with law enforcement when law enforcement obtains a valid order from a court demanding such cooperation. However, this situation is more complicated than that.

This dispute does not involve Apple’s refusal to comply with a valid search warrant; it has to do with the government’s decision to seek and obtain an order under the sparsely used All Writs Act to compel Apple to crack Apple’s encryption software — a capability Apple does not currently possess.

Use of the All Writs Act was required because Congress has not updated statues designed to address these issues. And leading case law resolving these disputes often invokes concepts from decades-old cases dealing with facts and devices that are not analogous to those at play in the digital age. Simply stated, the law has not kept up.

Read More about the Apple dispute here.