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Privacy and National Security: Apple, Inc. vs. the FBI

This past February, a judge in California ordered Apple, Inc. to help unlock an iPhone belonging to Syed Farook, one of the perpetrators of last December's San Bernardino shootings. A phone issued by Farook's employer was recovered by law enforcement and is locked with a four-digit password. Since too many incorrect attempts to guess the password will automatically wipe all data from the phone, the FBI has asked Apple to build a "back door" to this particular iPhone.

In an open letter to the public, Apple explains that they have provided requested data to the FBI on numerous occasions, and they regularly comply with valid search warrants and subpoenas. However, Apple contends in the letter that the FBI is asking for something unprecedented, which Apple considers to be too dangerous to create:

"Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession." 

The FBI is calling upon a 227-year-old statute called the All Writs Act of 1789 to support its position. The act, part of the Judiciary Act of 1789, is available in HeinOnline's U.S. Statutes at Large Library and also codified in the U.S. Code at 28 USC 1651. The statute states simply that:

"The Supreme Court and all courts established by the 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."

This act gives courts the power to issue orders not currently falling under a pre-existing law, and serves as a tool for courts dealing with uncommon legal issues not yet addressed by other laws. This gizmodo.com article further explains the All Writs Act.

Apple's letter also indicates that it doesn't believe the government would only use the "backdoor" tool in one instance, on the iPhone in question. They argue that the technique could be used multiple times, on any number of devices, and that it would be the equivalent to a "master key" able to open hundreds of millions of locks:

"We can find no precedent for an American company being forced to expose its customers to a greater risk of attack. For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data. Criminals and bad actors will still encrypt, using tools that are readily available to them."

According to this fortune.com article, the battle between Apple and the FBI is less about this one iPhone, which is unlikely to contain any important data, and more about setting a precedent which could have strong consequences for the tech industry. Just last week, Apple won the first round of this battle when a judge canceled a highly anticipated hearing which could have forced Apple to "weaken the iPhone's encryption in the name of national security."

Although the case is basically over with the cancellation of this hearing, experts forecast that it's only a matter of time before another case demands similar action. Nate Cardozo, an Electronic Frontier Foundation attorney, predicts that the FBI will try to get lawmakers to grant it additional powers in situations like the San Bernardino case, instead of taking the current Apple case to court.

A search in the Law Journal Library for "Judiciary Act of 1789" OR "All Writs Act of 1789" reveals nearly 10,000 results pertaining to this topic:

Performing a general search for ("privacy law" OR "privacy laws") AND technology in the U.S. Code, then sorting the results by date, produces an overview of the legislative progression of this subject:

Undoubtedly, this won't be the last we hear about this type of debate between the government and the technology industry. For help researching this topic in HeinOnline, contact our support team at (800) 277-6995, email us, or chat with us!

 

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