Apple vs. the FBI

FBI InsigniaApple has been in the news lately for refusing to help the F.B.I. unlock an iPhone that was used by one of the terrorists in the San Bernardino attack that left 14 people dead.

The Justice Department claims Apple’s refusal is a marketing ploy — “…based on its concern for its business model and public brand marketing strategy.”

In a letter to Apple customers, Apple CEO Tim Cook said:

While we believe the F.B.I.’s intentions are good, it would be wrong for the government to force us to build a backdoor into our products. And ultimately, we fear that this demand would undermine the very freedoms and liberty our government is meant to protect.

What the F.B.I. Wants

F.B.I. error seems to have made the problem worse: F.B.I. agents tried to reset the phone’s iCloud password, thinking they could then access the data. Wrong. It made the data NOT accessible. According to the New York Times, “the Justice Department wants to force Apple to write software that would allow the government to try millions of random password combinations to get into the phone.”

Apple has described this as an unprecedented demand, one that would require the company's engineers to build a new operating system from scratch and effectively hack into its own phone. The F.B.I. is asking Apple to do a lot more than hand over data it already has.

At present Apple has no way to give the F.B.I. the data on the phone. The company does not have access to it and does not have any tools that could access the data. The F.B.I. wants Apple engineers to create a new operating system that would have a “back door” that would allow them to access the data on the phone.

All Writs Act of 1789

A seemingly obscure piece of legislation — signed into law by George Washington, no less — is at the heart of the Justice Department’s efforts to compel Apple’s compliance with its wishes.

The law states that courts may:

…issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

Some (e.g., the Justice Department) read this law as saying courts can order people or businesses to do anything they want as long it’s not illegal.

Mixed Messages From the Courts

In a sign that the issue may be headed for the Supreme Court, two US District Courts have come to opposite conclusions on whether Apple has to comply with requests from the Justice Department to make it possible to unlock iPhones. Both basing their decision on the All Writs Act, a California judge has ordered Apple to unlock the phone to help the F.B.I.’s investigation, while a Brooklyn judge has said the company does NOT have to help.

The Brooklyn case involves police wanting to get access to information on an alleged drug dealer’s phone. In his ruling Judge James Orenstein said the Justice Department’s

preferred reading of the law would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress’s superior ability to prohibit or preempt

Is My Data Private?

For now, if you use an iPhone, the answer seems to be yes. If you use an Android phone, the answer is “probably not.” Only a little over 1% of Android phones have been upgraded to the latest version of the operating system that supports encryption, and different manufacturers may implement the encryption in different ways, some more secure than others.

Apple has appealed the California judge’s ruling. It’s possible the appeals court will take into account the reasoning used by the Brooklyn judge. But if Apple loses, the company will be forced to build a back door into the iPhone, and you can be sure if a back door exists it will be used not only by the government, but by hackers and criminals as well.


(Photo Credit: "FBI" by J is licensed under CC BY-SA 2.0.)

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