Apple v. the FBI: Unlocking Phones of Terrorists

The FBI seized the iPhone 5C of Syed Farook, one of the two assailants in the 14 shooting fatalities in San Bernardino, from the rental car in which Mr. Farook and his wife died. Because of iPhone security, the FBI has been unable to gain access to what is on the phone, information the agency believes might be helpful in limiting or preventing future attacks. As a result, Department of Justice lawyers filed a request with Magistrate Sheri Pym for an order requiring Apple to provide reasonable technical assistance in accessing what is on the phone.

 

Apple CEO Ken Cook responded with an 1100-word letter that began:

 

For many years, we have used encryption to protect our customers’ personal data because we believe it’s the only way to keep their information safe. We have even put that data out of our own reach, because we believe the contents of your iPhone are none of our business.

 

Apple has pledged to file a response to the order, which must be done within five days.

 

Apple had been in talks with the federal government about helping with the San Bernardino case, but could not reach an agreement. Without legislative authorization or permission, security and law enforcement officials must use individual court rulings for access.

 

There are emotional reactions and arguments pro and con - arguments that seem to be based on a misunderstanding about what the government has asked for and what the court has ordered. Mr. Cook calls the government’s actions “overreach.” However, the magistrate crafted a limited order. Apple is not required to provide its software to the FBI for its use. The order is limited to this case and the solution the judge has ordered is based on the FBI’s proposal that it be given unlimited opportunities to guess the four-digit pass code on the Farook phone. Apple need not redesign its programs or disable its encryption for this phone. Apple would have to find a way around the four-digit code in order to know that code internally.

 

As Mr. Cook noted in his letter, the government is asking Apple engineers to undermine “decades of security advancements to protect Apple customers.” In 2014, Apple enhanced security for its smart phones following what Edward Snowden disclosed about the government’s access to citizens’s smart phones. On the other side, experts point out that law enforcement being shut out of access to cell phones deprives them of the opportunity to investigate crimes and perhaps prevent others.

 

The government has gone to court and asked for a one-time means of access that cannot be applied universally. The real question is whether Apple should be required, in this circumstance, which involves obtaining more information about terrorist activities, help investigators. It is true that Apple engineers would have to build an investigative tool to help, but that tool would not be given to the FBI under the order. That question also has pros and cons, but it is a different question from the one Mr. Cook and those in the public square present. What is clear is that this case, absent compliance with the order, is headed to court.

 

Precedent? In In re Subpoena Duces Tecum, 570 F.3d 2012 (11th Cir. 2012), a court held that an individual could invoke his Fifth Amendment right to refuse to decrypt the hard drives of his computer for purposes of providing a grand jury investigating child pornography with evidence. Once the court ruled for the individual’s rights not to decrypt, the FBI did not appeal the case.

 

There is another issue in the case that has not been addressed in media reports. Whose cell phone was this? If the cell phone had been issued to Farook by the county agency for which he worked, there is a slightly different question. The individual right of privacy is subject to employer policies. In City of Ontario v. Quon, 560 U.S. 746 (2010), the U.S. Supreme Court held that there is no Fourth Amendment protection for employees for their private messages on work cell phones. They are not private. The rights in this case may not be individual, but controlled by county policy.

 

DISCUSSION STARTERS

 

Explain what the court order requires.

 

Discuss the pros and cons of Apple assisting the government.