Apple v. FBI: Privacy Issues Related to San Bernardino Shooters

Apple is opposing an order by a federal magistrate judge to help the FBI unlock an iPhone belonging to one of the shooters of the San Bernardino attacks. A judge ordered the tech giant to break into the iPhone belonging to one of the San Bernardino shooters, Syed Rizwan Farook. Apple has refused to comply with this order, citing as reasons the danger of creating a backdoor to data security, the development of a worrisome precedent for police power, and the danger of developing software that could be requested by foreign authoritarian governments. The judicial order relies on the All Writs Act, a 1789 law that permits courts to issue discretionary orders in the absence of other judicial tools.

Apple’s Stance

Farook’s phone belonged to the county public-health department, where he was an employee. The department has consented to a search of the phone. Specifically, the order requires Apple to disable the feature that wipes out data on the phone after ten incorrect attempts to enter a passcode. Because Apple cannot unilaterally dismantle the feature, it would need to write software that can bypass the 10-tries-and-wipe feature in order to access Farook’s phone.

In past cases, Apple has unlocked dozens of customer phones in compliance with various court orders. Furthermore, law enforcement could often access contents on older iPhones because these devices did not guard against unlimited password guessing. However, in 2014, Apple changed its software to decrypt valuable data on newer iPhones and to prevent the company from being able to unlock phones operating on iOS8 and more advanced systems. The court order asks that Apple develop a unique version of its operating system that dismantles the 10-tries-and-wipe feature so that the government can continue to guess passcodes without inadvertently deleting the data on the phone.

Apple has called this order a threat to data security and a dangerous precedent that could be used numerous times in the future. In a letter to its customers, Apple wrote:

The government is asking Apple to hack our own users and undermine decades of security advancements that protect our customers — including tens of millions of American citizens — from sophisticated hackers and cybercriminals. The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe.

Apple argues that the development of software to bypass 10-tires-and-wipe could undermine security advancements by enabling entities and individuals to unlock any iPhone in someone’s physical possession. Although the FBI contends that the software will only be developed for application to Farook’s phone, once the software is in existence, it may be used by other actors, including authoritarian regimes. Though the FBI does not describe its order as the creation of a “backdoor”, Apple holds that if it complies with the request, it would “undeniably” create one—one that would exist beyond the Farook case, available for countless applications.

The All Writs Act

The court order rests upon the All Writs Act. Enacted in the first session of Congress, the Act permits courts to issue discretionary orders in the absence of Congressional Acts. The All Writs Act states:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction

The Act allows courts to issue orders that do not fall under pre-existing laws. In order for the Act to apply, four requirements must be met: (1) the absence of a statute, law or rule ‘on the books’ that deals with the specific issue; (2) the existence of some relationship between the business and the investigation in question, including the presence of a business’s product; (3) the existence of extraordinary circumstances to justify reliance on the act; and (4) the absence of an unreasonable burden on the potentially compliant party.

Courts use the All Writs Act to deal with uncommon issues that Congress has not yet legislated. In 1948, the Supreme Court applied the All Writs Act in Price v. Johnston in which a prisoner challenged an appeals court decision dismissing his motion for a writ of habeas corpus order. The court held that the All Writs Act was essentially “a legislatively approved source of procedural instruments designed to achieve ‘the rational ends of law.’” As the twentieth century saw the advancement of new technologies, questions of technological assistance came before courts under the All Writs Act.

In the 1977 case United States v. New York Telephone, the Supreme Court applied the All Writs Act to the area of privacy.   The Court required a telecommunications company to assist federal law enforcement in utilizing pen registers (a mechanical device that recorded numbers dialed on telephones) in order to investigate illegal gambling activities. In defining the scope of the Act, the Supreme Court held that the Act extended to individuals not engaged in the original action, who had the capacity to interfere with the proper administration of justice.

The Court reasoned that since the telecommunications company’s facilities were likely being employed to “facilitate a criminal enterprise on a continuing basis”, the company had a duty to “supply the meager assistance required by the FBI in its efforts to put an end to this venture.” To do so, the telecommunications company was required to supply leased lines that might assist the FBI in learning the identities of the individuals connected with the gambling operation for which the pen register order had been issued.”

Since the court in New York Telephone held that the technology company supplying its product to the illegal actor could be required to use that technology to assist in the investigation of the legal actor, the present court may similarly hold that Apple is required to assist in the investigation of Farook’s use of his iPhone. However, unlike in the New York Telephone case, the present technology in question is much more sophisticated. Though there has been some applications of the All Writs Act to recent law enforcement attempts to unlock phones, the question of whether the precedent requires Apple to develop an entirely new software to help bypass a security feature of it’s new operating system is a new one.

The legal battle is expected to kick off next month.