The fight over Apple Inc’s refusal to help the FBI break into an iPhone used by a terrorist in California is destined for Washington. The only question is whether it will be Congress or the US Supreme Court that breaks the impasse.
Apple argues the Justice Department is overstepping its authority by forcing the company to help disable the encryption on an iPhone used by one of the two shooters who killed 14 people at a holiday party in San Bernardino on December 2. The company’s argument that lawmakers failed to give prosecutors the power they are seeking reveals a gambit that the Supreme Court will side with it on privacy and block an attempt to make it a “hacking” department for the government.
Apple said on Thursday in its first response in court to a judge’s order to help the government that relying on a law that predates smartphones by more than two centuries is unprecedented and threatens the civil liberties of hundreds of millions of mobile phone users.
That law, the All Writs Act of 1789, has been used by prosecutors to obtain court orders to enforce search warrants where there’s a legal vacuum. Apple contends Congress has had the chance to expand the power of law enforcement to access encrypted data on smartphones and hasn’t.
The Supreme Court ruled unanimously in 2014 that police must get a warrant before searching a mobile phone. Chief Justice John Roberts, in a ruling that indicates Apple may have a receptive audience for its privacy arguments, said cell phones weren’t merely a technological convenience. “With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Roberts said.
Whether the All Writs Act gives the US the authority, once it obtains a warrant, to compel the company to write new software to unlock a mobile phone goes beyond the scope of that 2014 ruling.
“At a minimum what should happen is Congress should legislate in this area” of national security, with the courts then weighing the constitutionality of the legislation, said David Rudenstine, a professor at Benjamin N Cardozo School of Law. “We shouldn’t back-door it and allow the government to get its hands on this kind of power by relying on an 18th century statute.”
A former aide to the Obama administration’s national security staff said that by trying to use Congress’s inaction as an excuse to force the court to rule, Apple may be playing into the hands of Federal Bureau of Investigation Director James Comey.
“The FBI is playing chess. If they win, they have a precedent for demanding assistance from Apple,” said Timothy Edgar, a senior fellow at Brown University’s Watson Institute for International and Public Affairs. “If they lose, they have a perfect argument to go back to Congress.” Apple may not like what it gets from lawmakers, Edgar said.
“I just have a hard time imagining government legislation that would be to the liking of the technology industry,” Edgar said.
The dispute between Apple and the FBI is part of a larger debate within Congress, the administration and the technology industry about whether law enforcement and intelligence agencies should be able to access encrypted communications. The issue has sharply divided lawmakers, and thwarted past efforts to reach compromise.
Prospects for legislation aren’t clear. Any bill is likely to face opposition from technology industry executives and lawmakers sympathetic to Apple’s cause, who argue that encryption is a sensitive technical matter that can’t be addressed through broad legislation. An agreement on encryption standards has eluded lawmakers for months. Apple wants Congress to create a federal commission to study the issue. Meanwhile, it may take anywhere from several months to two years for the case to work its way from a magistrate judge in Riverside, California, to the Supreme Court – and there’s no guarantee the high court will agree to review it.
“The government presumably wants a quick decision as it claims this information is necessary for national security,” said Michael Risch, a law professor at Villanova University School of Law in Pennsylvania. “Apple, on the other hand, may want to stall so that the information becomes stale. That said, other such orders could come in elsewhere, so it may also want to have quick resolution.” The first step is a court hearing set for March 22 in Riverside, where the magistrate who issued the order will consider Apple’s objections.
While the government has said it isn’t asking for a backdoor or trying to set a precedent and is only concerned with accessing the phone used by Syed Rizwan Farook, Apple is already fighting at least eight other attempts to force it to aid prosecutors in opening phones. The company says that if it complies with one order, others will follow and foreign governments may make similar demands.
Justice Department attorneys are reviewing Apple’s filing and will respond appropriately in court, said spokeswoman Melanie Newman.
“The Justice Department’s approach to investigating and prosecuting crimes has remained the same; the change has come in Apple’s recent decision to reverse its long-standing cooperation in complying with All Writs Act orders.” Newman said in a statement.
Comey told a House panel that he doesn’t think phones and other devices should be “spaces immune to search warrants.” The judge’s decision in the Apple case could influence the thinking of courts handling conflicts over encryption, he said.
One mystery the FBI would like to solve involves where the San Bernardino terrorists were for 19 minutes after the attack, Comey said. Agents have scoured security cameras at gas stations and other retailers but can’t figure it out, Comey said. He said the answer may reside on the phone, which belonged to Farook’s employer, San Bernardino County.
In Thursday’s filing, the company casts the case as “the FBI seeking through the courts a dangerous power that Congress and the American people have withheld; the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of
millions of individuals around the globe.”
Apple did a good job explaining why it would be burdensome for the company to comply with the government’s request, said Timothy Edgar, a senior fellow at the Watson Institute for International Studies and Public Affairs at Brown University.
Apple said experienced engineers would have to design, create, test and validate the compromised operating system, and then deploy and supervise its operation by the FBI to crack the phone’s passcode, using a “hyper-secure isolation room” to do so.
Still, he said, Apple may have a hard time backing up some of its technological arguments in court, or the US in its reply may agree that compliance is difficult but demand it anyway.
Apple filed its response the day before it was due, and also before its shareholder meeting on Friday in Cupertino, California. Chief executive officer Tim Cook, well-schooled in rallying investors at the company’s annual meetings, may use the forum to assert again that the company is determined to protect customers’ privacy. He’s got the technology industry’s backing, with Google and Microsoft Corp leading the charge to submit friend-of-the-court filings.
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