One of Apple’s most admirable traits is its strong support of user privacy and insistence that the end-to-end encryption used on iOS and OS X be completely uncrackable, even by the government. Unfortunately, this could get the company in some rather complex legal trouble thanks to a handful of anti-terrorism laws in the United States. In theory, Apple could be held accountable for damages done in terrorist attacks where it can be reasonably assumed that this encryption was used to protect the terrorists involved.
Apple’s strong support of user privacy — specifically including end-to-end encryption uncrackable by the government — could be setting the company up for civil suits based on the Antiterrorism Act and other laws, a legal blog has noted in a series of controversial posts. Writing for Lawfare, Benjamin Wittes and Zoe Bedell penned a two-part article suggesting that Apple’s encryption practices could, under specific circumstances, be found by a court to have “violated the criminal prohibition against material support for terrorism.” Apple could then be held responsible for foreseeable resulting damages to victims. As Wittes and Bedell concede, the article has provoked strong reactions from privacy advocates, decrying its conclusions. Particular trouble would arise if Apple was served with either a Title III or FISA warrant to access encrypted communications, Wittes and Bedell claim. If so, the company would be on notice that an individual under investigation for national security reasons was using Apple technology to further his aims, and if Apple refused to comply with the warrant, it would be showing indifference to the risk that it was assisting a terrorist. That indifference could make Apple liable for civil damages resulting from “any act of international terrorism” committed by the suspect.
