Posted by Kevin Hack on February 22, 2016 in Blog

iphone-410324_960_720.jpgApple CEO Tim Cook entered into a high stakes fight with the government last week when he released a letter to customers outlining his opposition to the Federal Bureau of Investigation’s demand that Apple grant the government access to the iPhone of San Bernardino shooter, Syed Farook.

Cook highlights the importance that customers place on the security of their data and the popularity of Apples end-to-end encryption of devices, primarily in protecting it from hackers and criminals, and the similar importance that Apple places on providing that security. He moves on to express the company’s respect for the FBI and willingness to assist the government in various ways. However, the threat posed by the FBI’s request for Apple to develop a “backdoor” encryption key to unlock Syed Farook’s phone is immense; it compromises the integrity of all Apple’s encryption technology for every phone, tablet, and computer.

Fortune points out that the the issue of Apple’s encryption has been a complicating issue for law enforcement for some time, and the Justice Department’s efforts aren’t constrained to just this particular iPhone. The San Bernardino shooters’ particularly egregious crimes, compounded by their alleged connections to ISIS, gives particular gravity to this case. However, it is a reasonable concern that, once a backdoor exists, it will be used in situations that will enjoy decidedly less public sympathy.

The legal precedent the FBI has cited in their demand for Apple’s compliance is the 1789 “All Writs Act,” a piece of legislation initially intended to empower courts in the newly independent United States to compel certain actions (the writ of Habeas Corpus for example, compels individuals or governments to provide a person in their custody). Perhaps it goes without saying that the All Writs Act, written in an era before vaccines, light bulbs, or widespread access to flush toilets, may not adequately address the intricacy surrounding issues of cybersecurity and data privacy.

Apple may still be able to resist the law on Constitutional grounds. The Fourth Amendment of the Constitution, which protects citizens against unreasonable search and seizure, is the most obvious. Other arguments have invoked the Fifth Amendment, that forcing Apple to develop software for the FBI would deprive them of liberty without due process of law, or the First Amendment, that forcing the software would constitute “compelled speech. 

The move comes amidst continued pressure on US tech companies to concede to the Justice Department on information sharing in light of the online recruitment and coordination of terrorist groups like ISIL. After the Cybersecurity Information Sharing Act passed as part of the Omnibus package in December, the FBI and the Office of the Director of National Intelligence can now more easily access online data through pressuring private tech companies to “self-report” online information, without using the programs that have received public backlash in the past. Tech firms including Apple and Twitter, along with industry organizations in the tech sector and 55 civil liberties organizations opposed the legislation, saying that it is a surveillance bill wrapped in a cybersecurity guise. Meanwhile, in Europe, the United Kingdom has recently taken up consideration of the Investigatory Powers Bill, proposing major expansions to domestic surveillance in the UK. Conversely, at the end of January, the ACLU launched a simultaneous effort in 16 states to expand data protection for residents through state legislatures. Apple’s actions come as a bold statement in a period where debate of security issues continues to intensify, and will likely play an important role, not only in the personal security of Apple products, but in the broader public discourse on surveillance in America.