On the face of it, the situation is pretty straightforward: The FBI has an iPhone used by one of the San Bernardino shooters, it is currently locked with a passcode, and they want Apple to assist in unlocking the phone. Apple has stated that they don’t have that capability, and that to comply with the order they would have to engineer a custom version of iOS that turns off certain security features, allowing the FBI to brute-force the passcode. It comes down to the federal government forcing a private company to create a product that they wouldn’t normally have made.
We can reasonably expect the FBI and Department of Justice to push back on Apple, which has not only provided assistance to the bureau in similar cases in the past, but has also provided assistance in this case in the form of technical advice and data available from iCloud backups. What’s interesting about recent events, though, is that they have taken the form of a court order under the authority of the All Writs Act of 1789, which gives federal courts the authority, in certain narrow circumstances, to issue an order that requires the recipient to do whatever it is the court deems necessary to prosecute a case.
Apple has spent months negotiating with the federal government in this matter and requested that the order be issued under seal, which means that it would have in effect been a secret order; the public would not have known about it. It’s also a possibility that the order could have been issued by the Foreign Intelligence Surveillance Court (FISC), a secret court, with no representation for the accused, used by the government to carry out covert surveillance against both foreign and domestic targets. Such an order would have included a gag order precluding Apple from divulging that they had even received it.
Instead, the FBI and DoJ went public with the nuclear option…the All Writs Act. The only reasonable explanation is that they expect this matter to be appealed, and that a federal court will side with the government, setting a landmark precedent. The FBI administrators are not fools; they expect to prevail in this. They picked this specific case, out of all of the similar cases over the past few years, to move their agenda forward.
Apple’s position isn’t that they can’t create a custom version of iOS to accomplish what the FBI wants. It is that to do so would be an invitation to any law enforcement agency to ask for similar orders in any case that came up involving an Apple product. Privacy would be permanently back-doored. And it wouldn’t stop with American law enforcement; it isn’t a far leap to see China demanding such a tool for Apple to continue to do business in the country.
The defense that Apple (and a growing consortium of supporters, including the EFF) is taking is that both the first and fourth amendments prevent the federal government from compelling speech. In this context, there is legal precedence that computer software is seen as speech, and so Apple cannot be compelled to write code that it doesn’t want to create. If the FBI and DoJ were to prevail, they would be able to require any company to write whatever code the government felt necessary, including backdoors or malicious software.
An analogy would be if the government decided that it would be in the public’s interest to promote a particular federal program, and so compelled the Boston Globe to write favorable articles about it.
This case has nothing to do with San Bernardino. It has everything to do with the federal government attempting to establish a legal foothold in which individual privacy is at the whim of the courts. And, as Apple has stated, a backdoor swings both ways; it would be only a matter of time before such a tool would be compromised and used by criminals or other governments against us. Privacy is a fundamental right as laid out in the first, third, fourth, fifth, ninth, and fourteenth amendments to the US constitution.
Edward Snowden said, “This is the most important tech case in a decade.” The outcome of this case and its appeals will help determine whether our future is one of freedom and privacy or of constant surveillance and a government that can commandeer private companies to do their bidding.