The War On Digital Privacy
Can the Federal Government Force Apple to Create New Software for Law Enforcement Purposes?
You’ve probably heard about the current fight between the federal government and Apple. The FBI, as part of its investigation of the shootings that occurred in San Bernardino, California last December, has obtained a court order requiring Apple to assist it in unlocking one of the shooter’s iPhones. Apple has made it clear it is going to fight the court order and has received the support of many of the biggest companies in the tech industry. So what is this fight about and why does it matter so much? Is Apple getting in the way of an important terrorism investigation or is the FBI overreaching in trying to force a private company to create a backdoor into an encrypted phone?
The Order Requiring Apple to Create Software
To understand the fight between Apple and the federal government, you first have to understand exactly what the government wants and what the court order requires Apple to do. As part of its investigation of the San Bernardino shootings and under a valid search warrant, the FBI obtained an iPhone 5c previously owned by Syed Farook, one of the shooters in the attack. Although the FBI has a search warrant under which it can search the contents of the phone, various iPhone security features are preventing it from doing so. The phone’s contents are encrypted and a password is required to view the content in an unencrypted way. The government could try to hack the password, but ten failed password attempts will trigger a feature on the phone that destroys all of the data on it. Apple does not have a ready-made backdoor tool or feature that could be used to get around the security features.
To gain access to the contents of the phone, the FBI sought and received a court order that would require Apple, as the maker of the phone and its operating system, to assist the FBI in bypassing the auto-delete feature and creating a way for the FBI to input password attempts to the phone electronically so that it can get in more easily and quicker. Though the order speaks in terms of assisting the FBI, it would be Apple doing the technical work. According to Apple, the order would require it to create an all new operating system to allow backdoor access to otherwise encrypted data.
The Legal Basis for the Order
Under what authority could a court possibly order a private company with no direct involvement in a crime to produce new software that would aid in an investigation? It’s not clear if the government actually has a valid legal basis (that is still to be determined), but the law under which the FBI sought the order and on which the court relied is called the All Writs Act. This old, somewhat obscure law was enacted 227 years ago and signed by then-president George Washington. The All Writs Act is a broad law that allows a court to issue orders to fulfill its existing powers. In this case, the court issued an order to help fulfill the search warrant under which the FBI is searching Farook’s phone. A court’s powers under the All Writs Act are not limitless, though. Courts cannot impose an obligation on a third party that is unreasonably burdensome or that violates the Constitution.
Apple’s Response to the Order
Apple has thus far refused to comply with the order and is challenging it in court. In its public statements on the issue, Apple’s main concern is that, if it follows the order and creates software that will allow the FBI to work around iPhone security measures in this case, the software could then fall into the wrong hands and be used in the future by criminals and governments to gain access to anyone’s iPhone.
From a legal standpoint, Apple is challenging the order in several ways. Apple argues that the order goes beyond what the All Writs Act was intended to do by essentially conscripting them into government service and creating an obligation that Congress has explicitly decided not to create. Apple also argues that the order creates an undue burden on it because it will have to create all new software to undo the security features it spent years developing. Not only that, Apple sees this order as only the tip of the iceberg. If this order were upheld, Apple anticipates it would receive many more orders to unlock encrypted iPhones to aid in government investigations, and it would need to either develop the necessary software each time it received an order or maintain a copy of the software, which would require tremendous security measures to protect from hackers. Apple argues it would need to create an entire “‘hacking’ department” to keep up with the court orders and update the code over time. While that might make for interesting business cards for members of the new department, Apple’s clearly trying to make the case that though this may be one phone in one case, the long-term implications for it are expensive and resource-intensive.
Apple further argues that the order violates the First and Fifth Amendments to the Constitution. The First Amendment protects, among other things, the freedom of speech, and computer code is considered speech. By compelling Apple to create code that unravels the security features it has built into its operating system, the company argues the government has violated the right to free speech. The Fifth Amendment provides individuals with due process and protects us from the government arbitrarily depriving us of our liberty, which Apple argues the government is doing here by forcing it to create software required to work around the iPhone security features.
Apple hasn’t been alone in challenging the court order. It’s found some interesting allies in the tech industry, including traditional competitors like Google, Microsoft and Amazon. If the order in the San Bernardino case is upheld, each company could face similar orders to help circumvent security features on their own products so they are throwing their weight behind Apple in court.
What to Expect
It’s always difficult to predict exactly how a court will rule, especially given the heightened interests of the federal government in a case like this. The original order in the case was issued without input from Apple, so it is entirely possible the court could vacate its order in light of the strong arguments that Apple has now raised.
Also, while not binding on the court in California, a separate federal court in New York recently ruled in Apple’s favor on a similar request to require Apple to assist in unlocking an iPhone in a drug case. In that case, Apple was given the opportunity to oppose the order before it was issued, and Apple used very similar arguments to those it is now using in the San Bernardino case. The New York court ruled in Apple’s favor declining to issue an order under the All Writs Act.
Now, attention will shift to the court in California to see if Apple’s arguments will win there too. The court has scheduled a hearing for March 22, 2016, at which time Apple and the federal government will have the opportunity to argue their sides before the judge. Whichever way the judge rules, the implications of the ruling will go well beyond the phone in this particular case to reach into many more criminal investigations both federal and local.
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