United States v. Apple

Apple has hired former U.S. Solicitor General Ted Olson to defend it against a court order that requires Apple to create a special version of its IOS operating system that gets around privacy features normally available on iPhone 8. The government wants to install it on an iPhone used by San Bernardino terrorist Syed Rizwan Farook, allowing the government to read the encrypted information stored on the phone.

Olson has been appearing on news programs but has not been saying anything very convincing about why the government should not be able to do this. He claims that it violates the U.S. Constitution, but there is not much in the Constitution that protects privacy. The Fourth Amendment requires a warrant issued on probable cause before the government can search, but the government has one in this case. Beyond that, there's precious little the government can't do. In the past, the U.S. Supreme Court has at times created new constitutional rights out of thin air, as in the case of the "right of reproductive privacy" that guarantees the right to contraception and abortion. More recently, the court has been much less willing to discover new rights hidden in the Constitution. The chances that they will find anything like a constitutional "right to encryption" lurking in the shadows of the Bill of Rights is about zero.

So, as is usually the case, the government can do pretty much as it pleases. Whether they should or not is another question.

Despite what they say, Apple doesn't care a whole lot about your privacy. Like all big companies, they care about making money, and they are concerned about where this will lead. They tightened security in iPhone 8 precisely because they saw that demand for secure phones was increasing and they were at risk of ending up at a competitive disadvantage.

The government can and will break Apple, but that's not the end of it. Unbreakable encryption now seems inevitable. Other phone models will develop good security and users will switch to those phones instead of Apple. Those phones and their operating systems can be made in other countries. We could end up with the Chinese government able to access data on phones used by Americans but the United States unable to access data on the phones of foreign agents or terrorists. The government will have won the battle but lost the war.

It's of no use to Apple to try to make this argument in court because it has nothing to do with the legal issues involved. The encryption chess match among governments and corporations, though, will play out for some years to come. The United States should take account of the endgame, not just the next move.