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Apple and the FBI: Privacy vs. Security
Posted On March 1, 2016
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The FBI’s request is based not on the USA PATRIOT Act, the Foreign Intelligence Surveillance Act, or another technology-driven statute, but on the 1789 All Writs Act. The act is little more than a housekeeping measure established as our court system was being created. It gave courts the authority to issue orders (writs) that were “necessary or appropriate” to accomplish their work. They include orders to third parties such as banks, phone companies, and manufacturers to provide technical and other assistance to law enforcement agents working under the authority of the courts. As the act has been interpreted by past court decisions, in order for a third party to be compelled to provide technical assistance, the government must show that the assistance of the company is necessary, that the company is not too far removed from the issue in question, and that what the company is being asked to do is not “unreasonably burdensome” (as stated in the FBI’s filing).

The FBI says Apple’s assistance is necessary—if Apple doesn’t help, the FBI cannot access the phone’s information without the risk of it being erased—and that as the manufacturer of the phone and owner of the operating system, Apple is not too far removed from the issue. The FBI also argues that Apple has control over its operating system and “writes software code as part of its regular business”; therefore it is not unreasonably burdensome for Apple to write a version of its operating system that would provide the access needed.

Apple’s Court Filing

In a 60-plus page court filing on Feb. 25, Apple makes it clear that complying with the FBI’s request is not only unreasonably burdensome but also violates both the Constitution and statutory law. On a technical level, Apple asserts that it would take a team of software engineers weeks to design the backdoor-creating “GovtOS,” as well as additional man-hours to upload the OS onto the phone, retrieve the data, and then remove and destroy the GovtOS. Apple argues that past cases involving the All Writs Act asked for very minimal help from third parties—simply “pressing a ‘few buttons.’”

Apple also challenges the FBI’s assertion that the order would apply only to Farook’s phone by pointing out that All Writs Act orders for unlocking iPhones and iPads have been issued in as many as 15 other pending cases throughout the country and that several state and federal prosecutors went on record pledging to also seek orders compelling similar support. In Apple’s view, this further indicates that the FBI’s request is not only unreasonably burdensome to Apple—each request would require either a similar effort for each case or the maintenance of the GovtOS backdoor, which would impose an even further burden against misuse by “criminals, terrorists, and hackers”—but also presents an unreasonable burden on all iPhone and iPad users who expect data security in their devices.

Finally, Apple says that the request violates both federal statutes and the Constitution. It points out that an existing federal statute, the Communications Assistance for Law Enforcement Act (CALEA), specifically does not “provide authority to compel companies like Apple to assist law enforcement with respect to data stored on a smartphone.” Apple argues that it is up to Congress, not the FBI or the courts (through the All Writs Act), to change the law, and that Congress has repeatedly declined to do so. Finally, Apple asserts that the FBI’s request violates the First Amendment by compelling Apple to engage in “speech”—writing computer code—that opposes what Apple values, namely an operating system that places the highest value on data security and the privacy of smartphone users.

The Court of Public Opinion

This issue is also playing out in the court of public opinion. President Barack Obama and Republican presidential candidate Donald Trump find themselves on the same side of this issue. The president’s press secretary announced that “the FBI can count on the full support of the White House.” Donald Trump called for a boycott of Apple until the company complies with the court’s order. In a court filing, U.S. Department of Justice attorneys said that Apple’s refusal and its open letter to its customers was little more than a “marketing strategy,” and in a blog post, FBI director James Comey said that the issue was about “victims and justice.” Some commentators have pointed out, however, that the FBI chose to go public with its difficulties in accessing locked iPhones in a particularly heinous and public criminal case, rather than with any one of a number of previous opportunities to do so in more mundane cases such as an Illinois case involving passport fraud.

The next step in the court case appears to be a hearing on the FBI request that is scheduled for late March. Any initial decision by the court will likely be appealed, possibly up to the U.S. Supreme Court. Apple says the issue really needs further “debate” and “thoughtful analysis” and ultimately would need Congress to decide whether to change the law. This latest salvo between security and privacy is just beginning.

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George H. Pike is the director of the Pritzker Legal Research Center and a senior lecturer at the Northwestern University School of Law. Previously, Pike was director of the Law Library at the University of Pittsburgh School of Law, and held professional positions at the Lewis and Clark Law School and at the University of Idaho School of Law, and was a practicing attorney in Idaho Falls, Idaho. Pike received his B.A. from the College of Idaho, his law degree from the University of Idaho, and his M.L.S. from the University of Washington. He is a member of the American and Idaho State Bar Associations, the American Association of Law Libraries, and the American Intellectual Property Lawyers Association.

Email George H. Pike

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