Apple said on Wednesday that it would oppose and challenge a federal court order to help the F.B.I. unlock an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December.
On Tuesday, in a significant victory for the government, Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California ordered Apple to bypass security functions on an iPhone 5c used by Syed Rizwan Farook, who was killed by the police along with his wife, Tashfeen Malik, after they attacked Mr. Farook’s co-workers at a holiday gathering.
But hours later, in a statement by its chief executive, Timothy D. Cook, Apple announced its refusal to comply. The move sets up a legal showdown between the company, which says it is eager to protect the privacy of its customers, and the law enforcement authorities, who say that new encryption technologies hamper their ability to prevent and solve crime.
Apple’s point is that the government is essentially trying to bypass the ongoing political and legal debate over encryption. We’ve mentioned this debate before: companies like Apple and Google are giving their phones encryption capabilities that are supposedly unbreakable. The federal government is trying to force them to provide backdoors into those encryption methods. But Apple notes, correctly, that there’s no such animal as a “backdoor” that would be exclusive to the government. It would compromise all the security on their phones, creating a capacity that any hacker could use.
(I would also note that, even if this were not true, creating a backdoor for the government is a huge problem. We have seen, with the Patriot Act and mass surveillance, that the federal government can not be trusted to use these power for “only” terrorism. Inevitably, these capabilities will be used to pursue the War on Drugs, the War on Sex Work, the War on You.)
Forcing Apple to develop new software to access Farook’s phone is an attempt to bypass this debate and create backdoors without a national debate, without an act of Congress and without input from civli libertarians. It may also be on very shaky legal ground:
Second, as the Post article notes the use of the All Writs Act in this manner appears to be unprecedented and, if upheld, would essentially allow the government to do almost anything in the name of law enforcement and intelligence gathering. Finally, and perhaps most strongly, it’s important to note that law enforcement isn’t asking Apple to provide information that it already has, which is what an ordinary search warrant does. It is essentially asking a Federal Court to compel Apple to do something, in this case create a backdoor that does not exist. This arguably falls well outside the scope of the Fourth Amendment and, if upheld, would give law enforcement authority to compel technology companies to do almost anything conceivable in the name of a purported investigation or surveillance of a target. That seems to go well beyond what the Constitution and existing law permits law enforcement to do.
But not beyond what they want to do. This is not just about Farook’s phone; they are demanding that Apple provide a capacity that can be used with any phone. I suspect that the feds know that their case is weak — they invoked Farook’s victims immediately as if a massive tragedy abrogates the Constitution.
It’s not like the FBI has nothing to go on here. They have access to the meta-data. They have the phone itself. They have any computers. They can get warrants for e-mail servers.
Apple should stand their ground here. They should fight this all the way to the Supreme Court if necessary (and this makes me miss Scalia, who could sometimes be good on Fourth Amendment issues). If the Federal government establishes a precedent that they can force tech companies to hack into our electronic devices, the Fourth Amendment will be hanging by a thread.