After the conflict between the FBI and Apple Inc. over one of the San Bernardino terrorists’ iPhones heated up last week, one aspect of the importance of this legal dispute became immediately clear. If the government’s efforts to force Apple to write custom software that will break the encryption protecting mass-murderer Syed Rizwan Farook’s iPhone succeed, it will be an epochal case in Fourth Amendment jurisprudence and privacy law. But there’s another area where the dispute has major implications, and that is the very nature of how the Supreme Court judges cases. Regardless of the its outcome, this fight will be remembered as a defining moment of early 21st-century law, likely eclipsing Citizens United v. Federal Election Commission, Bush v. Gore, and King vs. Burwell in terms of far-reaching consequences. Despite their dramatic scale and immediate, heavily politicized implications, the rulings that decided Obamacare and campaign finance regulations are ultimately just legal frameworks for policy changes that can be reversed (like, say, Prohibition)—but this case contains the seeds of far more sweeping change.
Whatever the outcome, the case will mark a fundamental—and inevitable—evolution of American law: It will be the moment that constitutional originalism was laid to rest as an outdated judicial philosophy that is unworkable in the 21st century. It’s ironic that a legal battle that started within weeks of Antonin Scalia’s death will undo the judicial philosophy identified most conspicuously with the late associate justice. But even Scalia, were he still alive and on the bench, would not plausibly have been able to fit the elements of this case within the framework of textualism and original intent.
There’s obviously a great deal at stake from a real-world standpoint as well. Those drawing the battle lines in court and in the press are making increasingly dramatic claims in both directions, warning of the dangers of capitulation. Apple’s detractors accuse CEO Tim Cook of “grandstanding” in defense of his products’ market value. Meanwhile, Apple and its defenders accuse the FBI of tactically seizing upon an incendiary, politically charged test case as a power grab that will allow massive government overreach and potentially unlimited violation of privacy. Apple refuses to comply with the agency’s motion to compel the company to write new software that would defeat the iPhone’s fundamental, intrinsic inability to reveal its contents without the user’s express compliance. Despite the agency’s “one-and-done” assurances, Apple insists this would open the door to similar requests being made and enforced in the future, which would mean, potentially, that nobody’s iPhone—or any other digital device—would be private ever again.
But, as important as these questions are, the arguments so employed are less far-reaching than the underlying quantum leap in legal thinking that this case represents. As this dispute demonstrates, digital technology creates a level of abstraction that can’t be penetrated by traditional legal terminology. Ironically enough, it was Apple who first attempted to make digital concepts less abstract in the 1980s when they pioneered the use of real-world metaphors to represent more obscure or confusing data-processing procedures. Apple introduced words and visual avatars like document, folder, trash, sleep, and—most significantly in the current context—lock as a symbolic language that let non-computer-scientists work with digital data in ways that were understandable. But as computer software develops new capabilities evolving beyond the limitations of the typewriter—or the VCR, or the film-based camera, or the Bell telephone—the meaning of those symbols and metaphors evolves and changes. The digital environment is essentially abstract and malleable; its rules change all the time.
Law, however, is based in the real world; its abstractions are necessarily rigid and difficult to change. This is the foundation of textualism. In any century, property is property; a contract is a contract; a lock is a lock; and a key is a key. According to a textualist reading, jurists like Antonin Scalia have been able to successfully argue, for example, that gun ownership in the present day may be understood according to the Constitution’s Second Amendment—regardless of the vast historical and contextual contrasts between 1791 and 2016—because in either century, bearing arms means the same thing. Until now, old-world legal concepts could be stretched to cover post-industrial and post-communication-age scenarios.
But the iPhone is fundamentally different. A September 2015 white paper explains the framework of Apple’s encryption-based operating system, in which a combination of a users’ password, Apple’s signed certificate, and a unique identifying code factory-burned into the device’s CPU together create a permanent, impenetrable shield. Unlike a physical lock, or a safe deposit box—or even a pre-Snowden, traditional cellphone—that shield cannot be broken without literally compromising the security of every other iPhone. By extension, this crack would give the government access not just to the audio records of phone conversations—as in traditional warranted wiretaps—but the entire life of the person owning the phone: the photographs, emails, text messages, work documents, private papers, browsing history, credit card information, and all the other elements of 21st century life that are contained in the pocket supercomputers that nearly everybody in the developed world carries with them every minute of every day.
In other words, there is no existing statute or decision that can determine the outcome of this case without aggressive interpretation. The abstractions are too new and strange. The manifold roles played by Apple’s ubiquitous devices are too various and comprehensive, penetrating into every aspect of citizens’ public and private lives—the legal rules of this iPhone world will have to be written from scratch.
According to the textual originalist, jurists are expected to find contemporary meanings in historical words—but, in the digital world, that’s not possible. The tenuous connection between decades-old—or centuries-old—language and modern digital scenarios has finally stretched to the breaking point. Rewriting the firmware on Farook’s iPhone opens one Pandora’s box from a privacy standpoint, but engaging in the interpretive thinking necessary to do so opens another, bigger one: The high court, if and when it hears this case, will have to acknowledge that it’s impossible to determine, from a textualist reading, what a pre-digital law “means” in a digital context. That meaning must be invented. Whatever happens to this iPhone, there will be no way for the high court to frame the decision like they have done in previous cases as a mere extension of the “search warrant” concept. The unprecedented scope and impermanence of digital security and the corresponding intrusive powers of digital surveillance and decryption make that impossible. However this case is decided, the foundations of American law will have permanently changed, advancing to a level of abstraction that would be literally inconceivable to the framers of the Constitution. We no longer have any choice: Modern times, modern technology, and modern circumstances require us to determine law without the rhetorical crutch of believing ourselves to be upholding the intentions of historical legislators for whom today’s world would be incomprehensible.
http://www.slate.com/articles/news_and_politics/jurisprudence/2016/02/the_fbi_s_fight_with_apple_will_be_the_case_of_the_century.html