Below the surface of the Apple/FBI case is the next round in the perpetual struggle between government and corporate power. We need to talk about this. We’re long overdue a good chat. As technology develops further, it changes what it means for a State to uphold its laws.

The FBI’s requests are technically feasible. They have in their possession an iPhone 5c, discovered at the site of the San Bernadino shootings. It is a work-issued device, protected by a passcode, running iOS8. Having locked themselves out of the iCloud account through poor operation practice, the FBI are demanding that Apple now provide a custom iOS firmware modification. iPhones give you ten tries to guess the passcode before it completely wipes the device clean. The FBI want to try an unlimited amount of times without having to worry about the device erasing all the data. Apple are not being asked to create a ‘back door’, or to break their encryption. However they are being asked to considerably weaken the security of the device and they’re not groovy with it.

The court order issued to Apple is backed by the 1789 All Writs Act. This is a rather fundamental piece of legislation without which US court orders are functionally useless. What matters most to the Apple/FBI case is a Supreme Court ruling from 1977: a court order must not place an “unnecessary burden” on compliance. Apple claim it is an unnecessary burden, the FBI claim it’s not. Hence the deadlock.

Questions about whether the FBI actually need access to the device still exist. Apple actually helped the FBI retrieve a lot of information from previous iCloud backups - stuff that was not encrypted. Through Verizon, the FBI retrieved call and Internet metadata. They’ve been able to conclude there are no links to other terrorists organisations. What remains is of course unknown, but given what’s already known, there’s unlikely to be a hidden smoking gun. It’s natural for a law enforcement agency to try to investigate every angle they have, so from their perspective they have a blank time frame that they want filled. A lack of cohesion can break a case. We’d expect the FBI to gather as much evidence as possible and cannot fault them for sticking to that goal.

Many who support the FBI with this case point out that Apple would be doing this as a one-off. There’s no risk of the code leaking out, because it will simply be deleted once this specific case has been resolved. Apple have been accused of turning this into an all-or-nothing issue, or trying to engineer impunity for themselves. Likewise, the FBI have been accused of waiting for a case of particular political impact in order to make their claims for more powers. This may or may not be about setting a legal precedent in the United States law - reports certainly suggest the FBI have more iPhones they’d like access to. It’s pretty clear that other countries will come knocking for access to this tool. Once a precedent is established, there will be expectations for similar tools for accessing other iDevices, including the more recent and secure iPhones.

This is the debate that now faces us. More and more of our lives are being stored online, housed in the data centers of private companies. There’s a trust relationship - that our lieges will protect us from threats. Our mobile devices are the key to our lives. Break into those and you have everything you need to commit identity and financial fraud. The very protections we put in place to protect us if our phone is pickpocketed also impede law enforcement.

We cannot continue to pretend that it is possible to break security but only for the goodies and never the baddies. Such limitations are based in mathematics and not in software patents. People who do not understand the full implications will push for a compromise that simply cannot exist without causing the very things they want to protect us from. What is one person’s compromise becomes another person’s defect that can be exploited. Trust breaks down. What’s left if we don’t have trust? Apple have their global reputation at stake.

Apple/FBI exposes the Emperor’s New Clothes for what it is - maybe governments do not wield as much power as they’d like to, or should do, despite the stories they like to tell us. When legislation has not kept up with reality, we face a large crisis of confidence in the democratic process. If we want to maintain a free, open and civil society we need to start discussing how we can practice effective law enforcement, with practical legislation for a truly digital age.

Further Reading collated with Storify