The high-stakes legal battle between the Federal Bureau of Investigation and Apple was ramped up Friday after the Department of Justice filed a new court brief in response to Apple’s public announcement that it will fight the court order compelling it to assist the FBI in unlocking a terrorist’s iPhone. In its new brief, the government accused Apple of using its business model and marketing strategy to subvert U.S. law. Apple argued that the government is asking it to hack its own product, setting a dangerous precedent for privacy and security.
By early Monday morning, both sides posted their side of the case online, the outcome of which will likely have lasting implications for privacy, the tech industry, and government access to personal data for a long time to come.
On Sunday night, FBI Director James Comey wrote a post on the Lawfare blog, arguing, “The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message.” Instead, the court order is “actually quite narrow,” Comey wrote, adding, “We don’t want to break anyone’s encryption or set a master key loose on the land.”
Comey suggests the American people should decide how public safety and individual privacy are balanced. “That tension should not be resolved by corporations that sell stuff for a living,” he wrote. “It should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
Apple, however, fears the case will set a dangerous new precedent.
In a new post to its website early Monday morning, Apple said the government should withdraw its court order and suggested that the U.S. Congress should step in to weigh the privacy and public safety issues. “We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy, and personal freedoms,” the post stated.
Apple CEO Tim Cook also sent an email to Apple employees thanking them for their support.
In addition to the technical issues that Apple has raised – that the government is asking Apple to build a new operating system to subvert its security protections – the company also argues the order sets a dangerous precedent that extends the government’s surveillance powers. “Should the government be allowed to order us to create other capabilities for surveillance purposes,” Apple asks, “such as recording conversations or location tracking?”
Apple also admits, in its post, that it can conceivably create the operating system the FBI is asking for, but “in the digital world, the technique, once created, could be used over and over again, on any number of devices.” Apple also points out that law enforcement agencies around the country have iPhones they want unlocked if the FBI wins its case. “Of course Apple would do our best to protect that key, but in a world where all of our data is under constant threat, it would be relentlessly attacked by hackers and cybercriminals.”
Congress, for its part, is also stepping into the fray. On Wednesday, Sens. Michael McCaul, R-Texas, and Mark Warner, D-Va., are expected to reveal more details on their encryption bill, which would include establishing a national commission on government access to encrypted data. On the other side, Sens. Richard Burr, R-N.C., and Dianne Feinstein, D-Calif., are reportedly working on legislation that would require companies like Apple to comply with court orders seeking access to encrypted information.
Congress is also seeking testimony from senior Apple executives on the matter. The House Judiciary Committee has asked Apple to testify on March 1, and the House Energy and Commerce Committee sent letters to Apple and the FBI asking them to testify as well.
Thus far, support among lawmakers is not along traditional party lines. Rep. Darrell Issa, R-Calif., said compelling Apple to undermine its security “is unlawful, unwise and unsafe.” Fellow Republican Trey Gowdy, however, said, “There’s a different constitutional analysis for things that impact national defense.”
The FBI’s new court briefing and a press call held by senior Apple executives last Friday also each revealed new details about the password of the phone in question. According to the FBI document, the San Bernardino County worker may have changed the iCloud password belonging to the phone in question, which would have potentially backed up the data to Apple’s iCloud, giving the FBI the data it wanted. According to the senior Apple executive, once that password was changed, the data would no longer get backed up to the cloud.
The official San Bernardino County Twitter handle posted this over the weekend:
The County was working cooperatively with the FBI when it reset the iCloud password at the FBI's request.
— CountyWire (@CountyWire) February 20, 2016
Apple also said its engineers suggested the FBI return to the shooters’ home and connect the phone to their Wi-Fi in the hopes of regaining access to the iCloud back up. “But since reporters and members of the public had swarmed that crime scene shortly after the shootings occurred, it was likely that any Wi-Fi there had been disconnected,” Wired’s Kim Zetter reported. The media event in early December created other privacy invasions that were broadcast on television.
For the legal arguments at hand, Law Prof. Orin Kerr pointed out that Apple’s legal challenge will likely focus on the All Writs Act and whether it authorizes the court to compel Apple to provide the needed technical assistance. “The scope of the authority under the AWA is just very unclear as applied to the Apple case,” he wrote. Plus, what may be a foreshadow of how complicated, and thus, how far away a solution to this case will be, Kerr noted, “This case is alike a crazy-hard law school exam hypothetical in which a professor gives students an unanswerable problem just to see how they do.” Ultimately, he said, the case could take years to resolve.
The court of public opinion is also in the cross-hairs at the moment, and it’s not clear which side will ultimately prevail. For one, families of the victims of the San Bernardino shootings have come out in support on both sides. The mother of one victim said she supports Apple, saying, “I think Apple is definitely within their rights to protect the privacy of all Americans.” Reuters reports, however, that other victims of the terrorist attack have come out in support of the U.S. government.
USA Today also reports that public support on the issue is a virtual tie. Of the more than 1,000 people surveyed, 51 percent said they support the U.S. government. Plus, a new report from the Pew Research Center states that U.S. citizens feel split about the tension between privacy and national security.
FBI Director Comey also called upon U.S. citizens to consider the situation, “In a sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.”
If it is up to the American people, however, argues Rep. Ted Lieu, then the FBI needs to withdraw its case:
— Ted Lieu (@tedlieu) February 22, 2016
At this early stage, what’s clear is that there will be a long slog ahead for both sides. Whether a solution comes through the courts or legislation, a solution appears to be a long ways away.
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