Has Technology Outrun the Law? What We Learned from the 'Apple vs. FBI' Case
Many of us were riveted and baffled by the now infamous ‘Apple vs. FBI’ standoff in the midst of the government’s investigation into the gun-related tragedy in San Bernardino, Calif.
After more than a month of the public battle in which the Justice Department demanded access to the alleged shooters’ iPhones through Apple’s never-before-used software “back door,” the federal order has been vacated. As it turns out, Apple was let off the hook once the FBI located a third party that was able to assist in unlocking the iPhone.
But by now, even that has become old news.
The hype around this face off has begun to die down, but in its wake, many are left with more questions than answers. Can our nation’s laws keep up with the rapidly evolving world of technology? What, if any, ethical bounds exist when it comes to encryption and personal devices in matters of national security? Was ‘Apple vs. FBI’ really just the tip of the proverbial iceberg?
Technology law: security vs. privacy
With the FBI having found different means to access the iPhone in question, the federal order imposed upon Apple was vacated. But before that came to light, the world watched as the FBI and Apple participated in a very public face off, wondering if it would take Congress instituting new legislation to include technology law that hadn’t yet been created.
The battle, at its core, was between the issues of national security and privacy, leaving many to wonder, “How far can they actually take this?” Unfortunately, we still don’t have any answers, but experts have weighed in on what the potential consequences would have been.
“If law enforcement can just undermine encryption on your phone — in an age where people are more concerned about privacy than ever — some shoppers will inevitably stop buying these devices they know can be broken into at the drop of a hat,” explains Lee Munson, researcher at Comparitech. He goes on to explain that this may lead consumers — criminals included — to more readily utilize burner phones that are discarded after use and resist the possibility of decryption.
“There are vast frontiers of digital activity that are simply not within the law because until recently, they were non-issues.”
“There are vast frontiers of digital activity that are simply not within the law because until recently, they were non-issues,” adds Kentaro Toyama, associate professor at the University of Michigan’s School of Information and author of Geek Heresy: Rescuing Social Change from the Cult of Technology. He compares our digital age to a “technological Wild West.”
Until now, Toyama explains, America has rested on the Fourth Amendment in prohibiting search of a person’s physical home or property without a warrant based on probable cause. But in the digital sphere, questions run rampant. “If your private data sits on data servers owned by someone else, whose property is it?” he asks.
Zooming out on the expanding world of technology
‘Apple vs. the FBI’ has likely been a prelude of things to come, and not just as they relate to encryption technologies. Technology is evolving faster than our ability to keep up. In its wake, there is no consensus on what is ethical as we look toward everything from artificial intelligence, drones, robotics, synthetic biology and more. Advances that once took decades to come to fruition now develop in a matter of years or even months.
Take the rules surrounding sports gambling, for example. We’ve seen fantasy sports sites such as FanDuel and DraftKings show up in national headlines for exploiting gaps in the law’s ability to keep up. Also consider the fact that drones are filling the skies faster than the Federal Aviation Administration can scramble to regulate their flight; Bitcoin is exploding quicker than the government can understand its true worth; and companies like Uber and Airbnb built worldwide success before governments could weigh in.
But the compelling issues in ‘Apple vs. the FBI’ are not exclusive to the United States. While the battle occurred on American shores, European countries are reacting in big ways. British lawmakers are currently completing legislation to force tech companies to bypass encryption protections when national security is concerned. French politicians have also been debating proposals to update antiterrorism laws that could land tech executives in prison if they refuse to provide encrypted information to investigators.
Is the law equipped to handle this?
Whether you aligned yourself with the tech giant or law enforcement during the historic battle, it is hard to deny that technology has outrun the law. “Frankly, the fact that the court is having to rely on the All Writs Act of 1789 speaks volumes and is embarrassing,” say attorneys Marc Lamber and James Goodnow, legal commentators with Fennemore Craig, P.C.
The Act in reference is a United States federal statute signed by George Washington (yes, that George Washington!) that authorizes federal courts to issue orders to compel citizens to do things within the limits of the law. “We shouldn’t have to rely on laws like the All Writs Act that trace back hundreds of years,” Lamber and Goodnow submit. “As technology changes more quickly and more vastly, it will put more and more pressure on the legal system — and all those involved — to adapt to those changes.” Our legal system, they explain, is set up to be reactive, not proactive.
Many assert that we ought to be discussing these technologies before the debates are forced into courtrooms following some national tragedy. “A Ph.D in hard sciences shouldn’t be a requirement to hold elected office in America,” writes Amy Webb in her CNN article on the Apple vs. FBI debate. “However, those responsible for making and enforcing our laws ought to concern themselves with tech that’s over the horizon.”
Webb goes on to assert that it was the lack of foresight on behalf of “an unbiased arm of Congress” charged with evaluating the meaning of emerging science and technology that made this public blowup possible.
The future of technology law
Thomas Jefferson said in 1816, “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
Jefferson’s sage words have been personified in the feud between Apple and the FBI and appear to be just as relevant now as the day he spoke them.
The doors to this showdown have closed and the public’s interest shifted, but the conversation surrounding technology and the law is far from over. Are you interested in digging more deeply into this and other contemporary conversations about past, present and future legal hurdles? If so, the paralegal career path may be a great fit for you! Check out these 14 fascinating blogs that have risen to the tops of paralegal students’ lists!