Adjunct Professor McKenna weighs in on the Apple-FBI kerfuffle

Penn State Law adjunct professor Anne McKenna on the legal battle between federal investigators and Apple:

The DOJ and FBI intentionally selected a headline case to push for legal authority that Congress has thus far declined to give them. Doing so in the underlying matter of the gruesome San Bernadino terrorist attack committed by a husband and wife pair of Islamic extremists plays on public fear, swaying the pole of public opinion toward law enforcement. Relying on the All Writs Act of 1789—a law passed almost 100 years before the telephone was even invented!—a federal magistrate judge has ordered Apple to create new software, "a master key" if you will, to bypass anti-hacking protections created by Apple.

Curiously, DOJ and prosecutors accuse Apple of slapping the San Bernardino victims in the face but do not mention that Apple has cooperated with DOJ and the FBI in this case, and more importantly, DOJ already has all of the particular iPhone’s cellular service data. This includes the suspect’s texts, incoming and outgoing call numbers, call duration, and GPS location data. DOJ and the FBI obtained it directly and lawfully from the suspect’s cellular service provider or "telecom"—because federal law (CALEA) requires telecoms to cooperate and aid in providing such call-related data to law enforcement. This data is not only on the phone; the cellular service provider retained and stored this data and has provided it.

Although there have been numerous proposals to amend CALEA to include Internet service providers and entities like Apple and Google, Congress continually has refused to pass such legislation. Why? Because there is a significant difference between our call data and the complete contents of our smartphones. Our smartphones have vast quantities of extremely personal information on them, probably more than a law enforcement officer could find out by executing a search warrant for days on end of our homes. Think of the apps on your smartphone and what you do with your smartphone—smartphones contain bank account details, online search history, your groups and associations, sexual and religious preferences, detailed data about all of our friends and family, health information, and our most personal communications, not to mention location tracking details of every place we have visited, online and in the physical world. Consensus among tech experts is that DOJ’s demands will force Apple to degrade the security of their technology and make our data more vulnerable to hacking. And when the court is relying on a 1789 law as its authority for ordering Apple to do so, it should raise some red flags. Is Justice Scalia—the champion of the Fourth and Sixth Amendments—rolling over in his grave?

McKenna is a partner at the law firm of Silverman/Thompson/Slutkin/White (STSW), where she chairs STSW’s Cyber Law Group, SilverMcKenna. She is a nationally recognized attorney and author in cyber law, privacy law, and cellular law with over two decades of experience representing businesses, individuals, and educational clients in every aspect of electronic surveillance, Internet, computer, cellular, online content, data practices, and privacy issues.

At Penn State Law, McKenna teaches Information Privacy Law. The course explores information privacy and security issues arising from technological change and resulting shifts in societal perceptions of individual privacy, including how private and government actors electronically gather data, what type of data is gathered (personally identifiable information, biometric data, geolocation data, intimate personal details), and how such data is compiled, shared, bought, and sold across private industry data platforms and government electronic databases.