Famed businessman and investor Mark Cuban has never been shy about speaking his mind. At his personal blog on Thursday, Cuban gave support to Apple for its decision to not comply with a court order that asked it to help the FBI bypass its own passcode security protocols on the iPhone 5c that belonged to one of the terrorists in last year’s massacre in San Bernardino, California. In fact, Cuban went so far as to give Apple a “standing ovation” for its stance.
“[Apple] are exactly right that this is a very, very slippery slope,” he writes. “And while the FBI is attempting to be very clear that this is a one off request, there is no chance that it is. This will not be the last horrific event whose possible resolution could be on a smart phone. There will be many government agencies that many times in the future, point to Apples compliance as a precedent. Once this happens, we all roll down that slippery slope of lost privacy together.”
As I argued yesterday, it looks like the FBI has set up a very clever trap for Apple. It knows that this is an emotionally charged case and that the politics of it look terrible for Apple. Politicians such as Senator Tom Cotton have already accused Apple of caring more about “the privacy of a dead terrorist” than national security and you can bet this is only the start of the public relations beating Apple will take if it continues its refusal to comply.
The FBI is betting that if Apple caves under public pressure, it will have precedent to ask both Apple and other companies such as Google to perform similar operations in the future.
Cuban, however, is not against laws that force companies to unlock devices used by alleged terrorists in certain circumstances. Instead, he more narrowly objects to the U.S. government’s use of the 1789 All Writs Act to justify its order to Apple. He says that if the government can use this act to justify forcing Apple to unlock its phones in this instance, it can use it to justify forcing tech companies to do all kinds of things that are harmful to customers’ privacy.
Instead, Cuban proposes the following solution:
A company can only be compelled to remove any type of security or encryption from a smartphone or tablet, and only a smartphone or tablet, under the following circumstances:
- There has been an event, with casualties, that has been declared an Act of Terrorism
- There is reason to believe that the smartphone was possessed by a participant in the Act of Terrorism.
- The smartphone must have been on premise during the event.
- The terrorist who was in possession of the smartphone or tablet must be deceased.
It would seem to me that if such a law could be proposed and passed, then the All Writs Act would no longer apply. By eliminating the All Writs Act as a catch all then we significantly flatten out the slippery slope. I’m not saying we will completely eliminate all privacy issues. We won’t. I’m not saying there isn’t risk of unintended consequences. There always are when we ask politicians to fix complex problems.
This, of course, would require Congress to actually do something useful by passing a new law and, well, they haven’t exactly proven themselves adept at that lately.