Ted Olson is one of the most prominent lawyers working in America today. He argued on behalf of George W. Bush in Bush v. Gore and was the solicitor general for most of Bush’s first term. A star conservative lawyer, he surprised many when he joined the fight to legalize same-sex marriage, taking up the battle against California’s Proposition 8 (and allying with David Boies, who argued for Gore in Bush v. Gore).
Now he is representing Apple in the company’s battle with the FBI, which has asked the tech giant to help federal investigators circumvent some of the security features in an iPhone 5C that was used by one of the San Bernardino shooters.
In an interview with NPR’s Steve Inskeep on Morning Edition, Olson said the iPhone was expressly designed to prevent the sort of thing the government is asking for.
“What in the law requires us to redesign the iPhone, to rewrite code, to provide an Achilles’ heel in the iPhone?” Olson said. “It was designed to protect the secrecy and privacy of individuals who use the iPhone.”
He argues that while Apple is obligated to assist in federal investigations, there is a limit to what the government can require it to do:
“A landlord is required to unlock a door. But a landlord isn’t required to build a door or to build a key or to build a lock.
“What the government is asking Apple to do here is to redesign this particular iPhone, to take weeks of its engineers to put together a system to disable the systems that Apple put into the system in the first place. … They want various features to be changed so you could get around the passcode.”
The FBI is specifically asking Apple to write software that investigators could load on this phone that would allow them to try out many possible passcodes. Currently, if they try to guess the phone’s PIN, they risk triggering an auto-delete feature that would destroy the phone’s data. There’s also a mandatory delay between entering incorrect passcodes, and they must each be entered manually.
The government says such a piece of software would be written specifically for the San Bernardino shooter’s iPhone and wouldn’t be usable on any other device. But Apple has repeatedly argued that the software, once created, would be too easy to reuse and would be requested again and again by investigators and prosecutors.
Inskeep noted that the software would work only with a phone physically in possession — “it’s not that somebody at the National Security Agency could reach across the world and get into your phone with this operating system change,” he said — but Olson said the slippery-slope argument still stood.
“The district attorney of Manhattan said, ‘I have 175 cellphones; I need to use this same technique to get into those phones’ — and not just terrorism cases,” Olson said.
And it opens the door to future requests, he said: “There’s really no limitation if the federal government, through a judge’s order, can ask you to redesign your own products.”
Olson said Apple has cooperated “in every way in every federal or state criminal investigation, up to the point that the law permits it” — but that writing software for the iPhone to make it less secure crosses the line
He called it “unfortunate” that Republican presidential candidate Marco Rubio said Apple was taking this stance to protect its brand. “What Apple is attempting to do is to protect the integrity of the product that hundreds of millions of people depend upon,” Olson said.
Olson’s wife died in the Sept. 11, 2001, terrorist attacks, and Inskeep asked if — given his personal history — Olson found it difficult to dismiss arguments from federal investigators that accessing this particular iPhone could help them prevent future terrorist attacks.
“We care very, very much, and I do personally, about any instance of terrorism or an effort to prevent it or redress it,” Olson said. “But we have to balance our constitutional rights and make sure that we protect what America is all about. So we can’t cross the line of giving up protections that are built into our Constitution — terrorists want to tear that down. We can’t give in to that.”