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San Bernardino victims divided on iPhone issue as FBI claims not trying to set a precedent

Victims and families of victims in the San Bernardino shootings have expressed divided views on the Apple vs FBI battle over access to an iPhone used by one of the terrorists.

We noted earlier that the mother of one of those killed in the attack has expressed support for Apple’s position, stating that the constitutional right to privacy “is what makes America great.”

This is what separates us from communism, isn’t it? The fact we have the right to privacy. I think Apple is definitely within their rights to protect the privacy of all Americans.

However, Reuters reports that some victims of the attack plan to file a legal brief in support of the FBI …

Stephen Larson, a former federal judge who is now in private practice, told Reuters that the victims he represents have an interest in the information which goes beyond the Justice Department’s criminal investigation.

“They were targeted by terrorists, and they need to know why, how this could happen,” Larson said.

Larson was reportedly approached by the Justice Department and local prosecutors, rather than by the families directly. He has said that he will be doing the work pro-bono.

FBI Director James Comey has claimed that the bureau is not attempting to use the case to set a precedent. In an emotive post on law blog Lawfare, Comey said that they wouldn’t be able to look survivors in the eye if they didn’t follow the lead.

The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.

The claim seems hard to reconcile with Comey’s longstanding opposition to Apple’s use of encryption in iPhones. He said over a year ago that Apple is putting people beyond the law.

The notion that we would market devices that would allow someone to place themselves beyond the law, troubles me a lot. As a country, I don’t know why we would want to put people beyond the law.

It is also hard to see how a court ruling could be made without setting a legal precedent, given that that’s how the law works. Tim Cook last week expressed skepticism about the idea of this being a one-off, and has today called on the government to withdraw its demands.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices.

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Comments

  1. 89p13 - 8 years ago

    “FBI Director James Comey has claimed that the bureau is not attempting to use the case to set a precedent.”

    Just how stupid does he think we are? This entire case is being manipulated by Justice to get a precedent setting ruling in their favor. They “found” this case or just this very purpose, IMO. IF there had been an encrypted iPhone found in Newark, NJ after the WTC came down, Justice would have filed this case back then.

  2. J.Johnson - 8 years ago

    I think this has little to do with This case specifically and more to do with getting the precedent set for this type of thing.

  3. Graham J - 8 years ago

    What if the FBI dropped the case and then Apple did it? No precedent, phone hacked.

  4. just-a-random-dude - 8 years ago

    > He said over a year ago that Apple is putting people beyond the law.

    No, Apple is not, they’re ensuring the rights of people given by the constitution trumps everything else. If anything, the FBI is the one trying to put themselves above the laws.

    The constitution didn’t come out of nowhere, the founding fathers knew this could happen and tried to do their much to make sure people always have the rights and that no excuses given by the government can take it away. Unfortunately, no one is paying attention and letting the government do it anyway.

  5. Totally being used to set a precedent, As Apple has stated before they fear that succumbing to requests of the FBI and creating this modified iOS and assisting in the way they do not want will create a precedent, There and thousands of law enforcement people around the country just waiting for Apple to lose this case so they can start to flood Apple with all these same requests. Not to mention the odds of there being any actually evidence on this device is practically zero, firstly they have an iCloud backup from 6 weeks prior that from what I have heard basically has little info on it in regards to the case, secondly, these suspects were aware of what they were doing, they destroyed all of the other devices that had evidence on them, what are the odds that they would take the time to destroy several cell phones and some hard drives, and then just leave this device laying around, doesn’t make sense. Also nobody seems to mention the fact that the county seemingly provided this individual with a device but didn’t take the time to install any management software like an MDM sever, it is their device, they should have had some type profile installed that would allow them to manage the device, I don’t know a ton about about the MDM server set ups, but I’m pretty sure when you have a managed device you can do things like change the passcode to it remotely. Why didn’t the county have anything like that set up?

  6. Brett-and Abby Bostrom - 8 years ago

    “It is also hard to see how a court ruling could be made without setting a legal precedent, given that that’s how the law works.”

    Court precedents are read narrowly all the time. You are right that a court ruling in this case would offer support for future similar cases, possibly leading to a faster resolution of the case in favor of the government. But it’s EXTREMELY unlikely that a court would frame its ruling so broadly to permit the FBI to enforce all requests to a master key.

    Also, this notion that one-off’s don’t exist in law is far too conclusive with so little support. Imagine that the Supreme Court ruled that the federal government could round-up all members of a certain demographic and quarantine them from the outside community. Wouldn’t we expect the government to use such power more than once? This scenario was the subject of United States v. Korematsu, wherein the Supreme Court upheld the use of internment camps. Most puzzling part: this is still technically good law today, as Korematsu has not been expressly overruled by the Supreme Court. Why not? Because the Court has not had opportunity to return to the issue, because it was a “one-off”.

    This is not the only example. A huge part of our Constitutional law today is meant to allow for this type of government intervention only in compelling circumstances, while mitigating the affect on individual rights. The courts are called to do this everyday. This same story shows up in a number of different contexts, and although I certainly wouldn’t say our liberty/privacy is at a maximum, we’re doing OK, relatively speaking. Our privacy status quo today exists despite a number concerning Judicial holdings that would seem to implement a surveillance state.

    Like I said, the slippery slope argument will never die, and is plastered all over these articles and comments. But to say, conclusively, that “one-offs don’t exist in law” seems like a product of fear an anxiety (with a few historical anecdotes) rather than the product of data and calm reasoning.

  7. Brett-and Abby Bostrom - 8 years ago

    I should also add that, in no way am I a proponent of the Korematsu holding lol. Just showing how “scary” holdings that were subject to lots of scrutiny and criticism don’t spark the beginning of the end.

  8. Derek Blackshire - 8 years ago

    “Comey’s longstanding opposition to Apple’s use of encryption in iPhone. He said over a year ago that Apple is putting people beyond the law.” I say that Apple is trying to keep the government within the Law unlike they have been acting in the past as was revealed in the Edward Snowden leaks and others have shown that they have very little interest in following the law that they are suppose to uphold. They like to paint Apple as the villain here when they waited for this case to come along so they can get the key that they have wanted and have gotten in the past. So after not setting a precedent they have several other phones lined up and waiting to use this one time no other key to be used for unlocking those as well. So who is it that is not being honest here?

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Avatar for Ben Lovejoy Ben Lovejoy

Ben Lovejoy is a British technology writer and EU Editor for 9to5Mac. He’s known for his op-eds and diary pieces, exploring his experience of Apple products over time, for a more rounded review. He also writes fiction, with two technothriller novels, a couple of SF shorts and a rom-com!


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