Forcing Change in Tech: The Telecom Act, Apple & the FBI

By Joyce Deuley

This February has been an important month for technology: we commemorated the 20th anniversary of the Telecom Act of 1996 and the battle between Apple and the FBI has ramped up over the FBI’s desire for Apple to unlock the San Bernardino shooter’s iPhone. The mass killing took place in San Bernardino, CA December 2, 2015, wherein Syed Farook and his wife, Tashfeen Malik, killed 14 people and injured another 22 as a result of religious extremism (Gawker). Apple’s participation in this, whether it comes from within the company or from the government, has the potential to massively impact the tech industry in the U.S.

The Telecom Act was created as an amendment to the Communications Act of 1934 in an effort to deregulate broadcasting and telecom markets, and was a fundamental piece of legislation that has shaped the tech industry—and the world—as we know it. Because of the Telecom Act’s impact, roughly 1.7 trillion dollars has been invested in broadband internet by mobile and cable operators within the last two decades. The Act managed to shift the focus away from monopoly-based regulation to a more competitive one, paving the way for a more diverse market and more opportunities for all. In his article, Telecom Act At 20: Forgotten Origin Story for Facebook, Google, Netflix?, Howard Homonoff credits the Act with shaping, “global infrastructure to facilitate the digital innovation to come.” And while there are disagreements over the effectiveness or the validity of some portions of the Telecom Act, no one can deny that its creation laid the foundations for modern telecom giants and media producers, which has allowed us to push for innovation, create new, dynamic business models, and so much more.

Similarly, it seems that we are on the precipice of passing another piece of fundamental legislation that could compel technology companies to assist in investigations by creating “master keys” for their software. The Telecom Act spurred innovation and drove positive change, yet it is unclear whether the battle between Apple and the FBI will foster future collaboration between tech companies and the government or something much more sinister and Orwellian—though, it doesn’t look good.

Initially, the FBI’s request to access Farook’s work iPhone was presented as a one-off; however, it seems that this case will set legal precedents that will have much further reach, greatly impacting mobile device users and tech companies operating in the U.S. alike. Despite a desire to assist in the investigation, Apple CEO, Tim Cook, has vowed to fight the government tooth and nail over this, equating this type of coding conscription to being “the software equivalent of cancer”; meaning that a decision in the government’s favor will mutate beyond this incident and invade all portions of the industry, forever altering our notions of the First Amendment and extend government control like never before (Gizmodo). Cook also said that, “it’s a very uncomfortable position to oppose your government,” in this case against “civil liberties, which they are supposed to protect.” Indeed, Tim....indeed.

The FBI has requested that Apple provide them with a Trojan-like software update on the iOS operating system that would allow them to have unlimited attempts to unlock the iPhone, rather than only 10 before the phone erases its data. If Apple is compelled to provide the government with this sort of access, other companies could (and most likely will) be asked to comply in similar fashion. Privacy concerns are at an all time high in light of the illegal surveillance carried out by the NSA last year, iPhone users wouldn’t be able to tell if software updates were coming from Apple or from the government, further damaging trust in our government and in Apple. This case is unprecedented, so both sides are wading through murky waters. Apple plans on using several different arguments to combat the FBI, including the All Writs defense and the First Amendment, as Freedom of Speech was applied to code in a case known as Bernstein VS the Department of Justice (Wired). For now, it's a wait and see kind of game.

Looking back, the creation of the Telecom Act was an admittance that life had changed dramatically through technology, innovation and modernity; that a lot had happened within the 60+ years between the Communications Act and 1996—and things are still changing. Haven’t we developed some of the most advanced technologies just within the last five years? And as we readdress regulations and tech-centric legislation, how will our decisions shape our industry going forward? In order to ensure continued progress, we need to pass mindful legislation that goes beyond one singular event. To mirror Homonoff’s concerns surrounding the volatile political environment we are currently in, let’s hope that we can find common ground and create a secure and viable roadmap for the future.