“Let’s not forget what makes us exceptional,” President Obama said after the San Bernardino shooting, “let’s not forget that freedom is more powerful than fear.” This statement has renewed irony this week, as the Federal Bureau of Investigations is ordering Apple to grant them access to the iPhone of one of the shooters. While on the surface this seems to be an easy decision, (why can’t Apple just give the FBI the data?) the situation is much more complicated than headlines would have you believe.
Following Edward Snowden’s revelation in 2013 that the NSA had been collecting vast amounts of data on American citizens since 2001, many telecommunications companies made efforts to better ensure the privacy of their customers. Because of these precautions, Apple itself doesn’t even have the ability to obtain data of its users. In order to give the FBI access to Farook’s phone, Apple would have to develop an entirely new version of iOS that would eliminate the encryption barriers. This new software, when in the wrong hands, could be used to collect an infinite amount of data with no supervision.
While already having obtained a warrant, the FBI cannot force Apple to compromise its own software without using the All Writs Act of 1789. This Act enables federal courts to issue court orders that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” The All Writs Act is essentially an all-purpose law that gives courts the ability to require a third party’s cooperation in federal matters. This obscure law has become increasingly relevant, along with the proliferation of the controversy concerning technology and the implications of its usage for the interpretation of the Fourth Amendment.
The Act’s usage in federal courts has precedents, such as the Supreme Court sanctioning the powers of All Writs to order a telephone company to install a pen register in 1977. It has also been used to order individuals to grant courts access to personal devices during investigations. The wording of the All Writs Act is purposefully vague, in order to grant federal courts powers that may not have been expressly included in the Constitution. While this Act is concerning to proponents of civil liberties, citizens can rest assured that the Supreme Court has defined limitations to the usage of the Act. “A court cannot use it to bypass other laws or the Constitution, nor can it require third parties to assist in ways that would be unreasonably burdensome.”
It has been determined that the court cannot use the All Writs Act to order a company to install a backdoor into its product. Forcing Apple to develop software designed to subvert and circumvent its product’s encryption definitively qualifies as unreasonably burdensome.
In a message to its customers, Apple CEO Tim Cook wrote:
“When the FBI has requested data that’s in our possession, we have provided it. Apple complies with valid subpoenas and search warrants, as we have in the San Bernardino case. We have also made Apple engineers available to advise the FBI, and we’ve offered our best ideas on a number of investigative options at their disposal. We have great respect for the professionals at the FBI, and we believe their intentions are good.
Up to this point, we have done everything that is both within our power and within the law to help them. But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone. 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 may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Apple’s rejection of the court’s order has significant implications for the future of private sector cooperation in federal matters. The war on privacy, most recently exhibited in Congress’s last-minute addition of the universally unpopular legislation, CISA, in a sure-to-pass budget, has been characterized by a lack of resistance on the part of the citizenry. Apple has taken a bold stand on a controversial subject, which is always an unusual occurrence in the realm of sales and competitive markets. It will be interesting to see how the FBI responds to Apple’s stance for Constitutional liberties, and how the San Bernardino investigation will proceed in the coming days.