Apple Should Have Same Confidentiality Rights As Attorneys, Priests - InformationWeek
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Mobile // Mobile Devices
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2/27/2016
12:06 PM
Thomas Claburn
Thomas Claburn
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Apple Should Have Same Confidentiality Rights As Attorneys, Priests

Technology companies know more about us than our loved ones, attorneys, or priests. To balance the availability of that information in matters of public safety, businesses should have a limited exemption from being required to provide such information.

MWC 2016 Best In Show: Galaxy S7, LG's G5, More
MWC 2016 Best In Show: Galaxy S7, LG's G5, More
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FBI Director James Comey has spoken about the need for our legal system to balance public safety and privacy. But the US government's conception of balance is one-sided. The government has a right to force businesses to assist law enforcement operations, even if that work threatens privacy commitments made by businesses.

When every company becomes an on-demand informant, there's no balance. As Apple put it in a recent legal filing, the US government's interpretation of the All Writs Act is "boundless."

Apple's arguments against being forced to assist the FBI focus on the limits of the All Writs Act and on the company's rights under the US Constitution. The company also raises the issue of political reality. Any iPhone hacking software that Apple provides to the FBI will be demanded by other law enforcement agencies and by foreign governments.

But if as a society we're truly interested in balancing public safety and privacy, we should consider the application of testimonial privilege to third-party service providers.

(Image: AleksandarNakic/iStockphoto)

(Image: AleksandarNakic/iStockphoto)

Our legal system accepts that spouses, priests, and certain professions like accountants, attorneys, and physicians are exempt from having to testify in certain circumstances. Some jurisdictions recognize a parent's right not testify against a child.

These rights vary in different places and are not absolute, but they provide some measure of privacy where it serves the social good.

Businesses should have similar rights. In many cases, they know more about us than spouses. Apple's iPhones probably hear more confessions than priests. And, chances are, they remember everything.

Data may not be regarded as testimony, but in many ways it's the same thing. It's a testament to our conversations and actions. In Apple's case, the FBI wants the company to create code, which the courts have recognized as expressive speech.

Under the US government's interpretation of the All Writs Act, businesses must cooperate with law enforcement when assistance isn't an undue burden. But the government treats digital information too lightly, as if it were making a trivial demand on Apple.

Businesses should have the privilege not to inform on their customers unless they choose to do so, thereby allowing individuals to expect some measure of fidelity in their business relationships. Apple has helped law enforcement before and no doubt will again. But Apple needs to be able to provide assistance in a way that's consistent with its commitments. It needs to have the option to refuse, without being subject to sanctions or coercion.

[Read Microsoft, Facebook and Google Take Apple's Side in FBI Showdown.]

In this particular case the FBI has not demonstrated that the unknown data it hopes to obtain will have any value. Were the agency certain that an imminent terror attack could be thwarted with the data it seeks, its argument would be stronger. But it hasn't met that burden of proof.

Sometime over the past few decades the spread of the Internet and mobile devices put everyone under de facto surveillance. There's no balance in the current situation at all. Everyone partaking in modern connected society gets surveilled. Mobile phones ping cell towers or Stingrays, leaving records of our movements. Cloud service providers store personal communications and pictures. Automated license plate readers and RFID toll tags track the movement of vehicles. Network providers and search engines see the websites we visit, and merchants track our interests.

Business data has become an All-You-Can-Eat buffet for authorities. While that may be convenient for investigators, it makes a mockery of the concept of privacy. If there's to be any balance between security and privacy, businesses should have the right not to act as informers under all but the most extreme circumstances.

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Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful ... View Full Bio
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Joe Stanganelli
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Joe Stanganelli,
User Rank: Author
3/18/2016 | 9:14:39 AM
Re: ehhhhh
The data already exists for him -- or anyone else -- to make an educated guess based strictly on geography.  pornhub.com/insights/united-states-top-searches
mejiac
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mejiac,
User Rank: Ninja
2/29/2016 | 2:30:49 PM
Re: Hardened iCloud
@jnskm,

I share your sentiment. I also use an Iphone because it is a more secure device, same reason why many companies also use it, but not only for communication purposes, but also for running custom apps that complemente their business, and they rely on data being secured.

It's very sad that Apple is in this situation, where they are trying to force it's hand. Thankfully most folks have sided on Apple's part and what seems to be right.

Let's see how this pans out.
jnskm
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jnskm,
User Rank: Moderator
2/29/2016 | 2:23:47 PM
Hardened iCloud
As far as I know Apple has helped authorities by giving them synced iCloud data and/or backups. Right now iCloud data is not fingerprint/passcode encrypted like data on our iPhones. But I here Apple is working on making iCloud like that. When (not if) this happens Apple will no longer be able to respond to authorities because it won't be able to access that data.

Apple should be left as a private company to work on providing hardware, software, and services. I use an iPhone precisely because I know my data will be safe, and not be shared among government workers, sold to advertisers, or stolen and sold in black markets.
BrooklynNellie2
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BrooklynNellie2,
User Rank: Moderator
2/29/2016 | 1:37:40 PM
Re: ehhhhh
Do you really want Barack Obama to be able to see what sort of porn you prefer?
jastroff
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jastroff,
User Rank: Ninja
2/29/2016 | 12:29:44 PM
Re: ehhhhh
Good point >> but extending testimonial privilege to tech companies would be very different than existing testimonial privileges.

Perhaps one of the sillier arguments around
progman2000
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progman2000,
User Rank: Ninja
2/29/2016 | 9:23:45 AM
Re: ehhhhh
I don't know, I think there is a fine line between being concerned about consititutional rights and being a paranoid anti-government zealot. If there is information on those San Bernadino phones about some future plot which could end up killing one of my loved ones, I can tell you I vote for letting the FBI take a look. If it means that the Feds may end up looking at my phone data and seeing what kind of stuff I am texting my wife, I'm willing to make the trade off.
Thomas Claburn
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Thomas Claburn,
User Rank: Author
2/29/2016 | 9:08:58 AM
Re: ehhhhh
>Unless you are involved in criminal activity, who gives a fat flip?

 

If that's how you view privacy rights, why have them at all? Just throw out the Constitution because every action the government takes is perfectly calibrated and lawful. Only the guilty get accused. Only criminals go to prison.

But don't complain when your bank account gets emptied because some hacker was able to install malware on your phone remotely using technology built on Apple's backdoor, obtained from someone with ties to a foreign government or intelligence service.

Take a look at The Athens Affair to see what can go wrong when you have a lawful intercept system (backdoor) build into telecom hardware.
progman2000
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progman2000,
User Rank: Ninja
2/29/2016 | 7:09:07 AM
Re: ehhhhh
This is one of those cases where I say "who cares?". Who cares if the government has access to Google, Microsoft, Apple, etc etc data. Yes, I use those things, but if the government were to look at my stuff there wouldn't be all that much to get excited about. Unless you are involved in criminal activity, who gives a fat flip?
Whoopty
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Whoopty,
User Rank: Ninja
2/29/2016 | 7:07:30 AM
Bravo
Couldn't agree more. This is an excellent interpretation of how companies that store our digital data and provide communication platforms should be considered. 

I really can't tell if the FBI and other organisations don't see how far reaching this ruling will be, or just don't care and want unrestricted access to all data? Either way it's not good. 
nasimson
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nasimson,
User Rank: Ninja
2/28/2016 | 10:58:56 AM
Re: ehhhhh
@tzubair: Not just that. Once Apple concedes to FBI, Russians, Europeans, Mexicans, Pakistanis, Indians are next in line to demand that access from Apple. It's a slippery slope.
Page 1 / 2   >   >>
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