“Now what folks who are on the encryption side will argue is any key whatsoever, even if it starts off as just being directed at one device, could end up being used on every device. That’s just the nature of these systems. That is a technical question. I am not a software engineer. It is, I think, technically true, but I think it can be overstated. So the question now becomes, we as a society, setting aside the specific case between the FBI and Apple, setting aside the commercial interests, the concerns about what could the Chinese government do with this even if we trust the US government, setting aside all these questions, we’re going to have to make some decisions about how we balance these respective risks.”
-President Obama [i]
* * * * *
On December 2, 2015, an employee of the San Bernardino County Department of Public Health and his wife opened fire on a training event and holiday party of 80 employees of the health department, killing 14 and injuring 22.[ii] The couple, both Pakistani but legal U.S. citizens, were ultimately killed in a shootout with the police, and the event was deemed an act of terrorism.[iii]
Since then, numerous investigations have taken place to determine motive, terrorist ties, and personal information about the couple.[iv] Of the most recent importance is the discovery of one of the shooter’s iPhone used during the attack in San Bernardino.[v] The FBI believe that “encrypted data in Mr. Farook’s phone and its GPS system may hold vital clues about where he and his wife…traveled in the 18 minutes after the shootings, and about whom they might have contacted beforehand.”[vi] However, the FBI has hit a major security wall in attempting to unlock the iPhone.[vii] “The password mechanism built into the phone will erase the phone’s data after 10 incorrect password attempts.”[viii] Such security is standard on the newer iPhone models.[ix]
In an attempt to bypass this security system, the FBI has reached out to Apple for help in unlocking the phone, but the two organizations have clearly different views about what is at stake.[x] The FBI sought a federal court order requiring Apple to provide access to the iPhone.[xi] In order to provide access to the phone, Apple would need to write a new operating system that would remove security features and “add a new ability to the operating system to attack iPhone encryption, allowing a passcode to be input electronically. This would make it easier to unlock an iPhone by ‘brute force,’ trying thousands or millions of combinations with the speed of a modern computer.”[xii] Following the court order, Apple published a letter stating that it would challenge the order on the grounds that it violates the company’s right to due process and that forcing it to write new software violates its First Amendment right.[xiii]
Why is Apple Fighting Back?
In a customer letter released on its website, Apple clearly explained its opposition to what the federal government is asking it to do. At the crux of the letter, Apple takes a strong stand that it holds the privacy and security of its customers at an utmost priority, which is distinguished from the government’s priority of national security and obtaining information possibly related to terrorism.[xiv] In the letter, Apple stated:
The passcode lock and requirement for manual entry of the passcode are at the heart of the safeguards we have built in to iOS. It would be wrong to intentionally weaken our products with a government-ordered backdoor. If we lose control of our data, we put both our privacy and our safety at risk.[xv]
Another reason Apple gave for objecting to the court order, more constitutionally grounded, was that the order would set a bad precedent.[xvi] Apple is afraid of allowing the government to expand its own powers, especially in the realm of surveillance, giving it capabilities such as recording conversations and location tracking.[xvii]
Effects of a Favorable Ruling for the FBI
Most of the large tech companies in Silicon Valley have already backed Apple, seeing this battle as just the tip of the iceberg when it comes to personal security and privacy.[xviii] While the FBI claims it just wants to use the newly created software for just this one iPhone, Apple has severe reservations. “Law enforcement agents around the country have already said they have hundreds of iPhones they want Apple to unlock if the FBI wins this case. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks….but in a world where all of our data is under constant threat, it would be relentlessly attacked by hackers and cybercriminals.”[xix]
Especially in today’s rapidly changing technological age, “[y]our phone is more than a personal device….it’s part of the security perimeter that protects your family and co-workers. Our nation’s vital infrastructure…becomes more vulnerable when individual devices get hacked.”[xx] Not only would this open individual’s personal security and privacy up to domestic hackers, but international hackers as well. Especially since Apple products are used globally, if this software were to fall into the wrong hands, the effects could be detrimental to millions. While national security is of obvious importance, risking the security and privacy of millions of citizens and beyond may not be worth it, especially when the FBI is not even certain what exactly is on the phone. If they ever find out by means of new software from Apple, they may already be finding national and individual security in a compromised state.
[i] Philip Elmer-DeWitt, Here's What Obama Said at SXSW About Apple vs. FBI, Fortune (Mar. 12, 2016).
[ii] Greg Botelho and Ralph Ellis, San Bernardino shooting investigated as ‘act of terrorism’, CNN (Dec. 4, 2015).
[v] Arash Khamooshi, Breaking Down Apple’s iPhone Fight With the U.S. Government, The New York Times (March 4, 2016).
[x] Mike Isaac, Explaining Apple’s Fight With the F.B.I., The New York Times (Feb. 17, 2016).
[xii] Answers to your questions about Apple and security, Apple (last visited March 10, 2016) http://www.apple.com/customer-letter/answers/.
[xiii] Supra, note 5.
[xiv] Supra, note 12.
[xviii] Supra, note 5.
[xix] Supra, note 12.
[xx] Craig Federighi, Apple VP: The FBI wants to roll back safeguards that keep us a step ahead of criminals, The Washington Post (March 6, 2016).