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BAKER, KEENER & NAHRA, LLP

Trial Attorneys

Posted by on Feb 20, 2016 in Publications |

Apple is Going to Make a Bigger Rock

Apple is Going to Make a Bigger Rock

Can God make a rock so large he can’t move it? Maybe God can’t, but I can guarantee that Apple will.

Earlier this week a federal court ordered Apple to create a “backdoor” or “master key” that would allow the FBI to more easily access data on an iPhone used by one of the terrorists involved with the mass shooting in San Bernardino (that’s simplifying the task, of course, but essentially what is being asked). The order was issued after the FBI reported to the court that they were unable to access the iPhone’s data despite their best efforts.

In response, Apple made it clear, in a multi-paragraph letter, that it will fight this order up to the United States Supreme Court if need be (which, incidentally, could drag this fight on for years given the recent vacancy left by Justice Scalia’s tragic death and the inevitable, lengthy battle between Congress and the President over his successor). While much has been said, and will continue to be said, as to whether Apple is right to do so and whether Apple will be able to succeed in opposing the court order, not much has been said about the immediate, practical ramifications of the court order and the decision by Apple to fight it. Two of these immediately come to mind.

First, the government abruptly forced the tech industry to pick sides in the fight of privacy versus security after drawing a very hard line in the sand and it is apparent that a number of large players in the tech industry were not ready or willing to do so.

From the lukewarm response coming out of Google and the radio silence from Microsoft and the numerous hardware vendors for Android phones and personal computers, they have made it clear to consumers that they have no real interest in securing their phones, computers, or other electronic devices against unwanted intrusion and have signaled that they would likely comply with the court order if they were in Apple’s shoes (or, even worse, an order wouldn’t even be necessary to hack their devices).

As such, consumers can now very clearly see the battle lines, with Apple being the undisputed standard-bearer for consumer privacy. The end result will be that, by forcing the issue here and now, the government has inadvertently highlighted for consumers which companies are actually on the side of consumer privacy and which have simply been paying the idea lip service.

And second, the government does not seem to have considered how Apple is going to respond. I’m not talking about the legal responses, though they will certainly be many; rather, I’m talking about the practical response.

Tim Cook is a smart man and I have no doubt that by the end of this week he will have given his iPhone development team one directive that supersedes all others: make me a rock so large that we can never move it again. With that order in mind and what could possibly be months, if not years, to implement it, the iPhone and iPhone software that comes out the other side will be more secure and more impregnable than anything Apple had ever contemplated before. And the government, by issuing its order specifying the steps Apple is to take to assist the FBI, will have made all of this possible by giving Apple a precise roadmap for what exactly it needs to do to ensure that it does not have the technical capability to ever comply with such an order again. The end result will be that, unless encryption laws change, even if it ultimately gets access to this single iPhone, the government is ensuring that it will never get access to another secured iPhone again.

What does all of this mean for consumers? It means that Apple will have the most secure consumer devices on the planet. Not only because those devices will have the best hardware and software with which to provide such security, but because the company that creates them will now be making their security more of a priority than it ever has before.

If you have any concerns about maintaining the confidentiality and privacy of your data (or those of your customers, clients, or patients), as many of our clients and the clients of other law firms do in this day and age, the developments of this week should make it clear to you that it is absolutely crucial that you carefully consider what devices and software you use to store and secure this data and what companies you want to be responsible for ensuring that this security cannot be compromised. After the events of yesterday, that could be a very short list of options indeed.

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If you’re involved in a lawsuit or risk management and have any questions regarding current or potential legal issues, we would urge you to contact an attorney as soon as possible to obtain advice, guidance and representation. At Baker, Keener & Nahra, we have the experience, skill, and drive to get the best possible results for our clients, no matter the size of the case or the scope of the problem. So if we can be of any assistance to you, please contact us and let us know how we can help.