By Emily Zheng (PO ’19)
With a possible hearing in the near future regarding this high profile case, Apple and the Federal Bureau of Investigation (FBI) have recently clashed over encryption and the law enforcement’s power—or lack thereof—over technology. The FBI itself has acknowledged that “the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem we have long described as ‘Going Dark.’”[1] One such public safety problem occurred in December, when Syed Rizwan Farook and Tashfeen Malik killed 14 people with guns and explosives in San Bernardino, California before being killed in a shootout with police.[2] Information about the shooters have been found from a variety of sources, including Malik’s Facebook page created under an alias that revealed his support for the Islamic State, but many questions have still been left unanswered. The FBI obtained Farook’s iPhone 5c during the investigation, and is currently looking for methods to unlock the phone in order to uncover the two shooters’ communications before the attack and their possible motives.[3] However, despite the tragedy that occurred in San Bernardino and the other cases that could be aided by this technology, Apple should not cede to the FBI because creating software that is capable of unlocking millions of iPhones is incredibly dangerous and could have ramifications across the globe.
The issue is that the phone is protected by a passcode that the FBI does not know. Apple’s phone security features, which include the option of automatically wiping the device’s data after 10 consecutive incorrect attempts to enter the passcode, a mandatory delay between entering passcodes after a number of failed attempts, and the requirement that passcodes must be entered manually instead of through a computer, prevent the FBI from repeatedly guessing the passcode.[4] Therefore, the FBI wants the company to circumvent those security features so it can test unlimited passcodes until it can unlock the phone, a process known as “brute forcing.”[5]
Apple has denied the FBI’s request. In response, the FBI has cited the All Writs Act from the Judiciary Act of 1789, which states that courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”[6] However, using this dated Act to force Apple’s cooperation will open a Pandora’s box that will have serious and dire implications in the future.
The unlocking in question concerns encryption, the process of encoding information so that only authorized parties can read it in order to “protect…customers’ personal data [and] even put that data out of [Apple’s] own reach.” It does not prevent interception of data, but only reveals content to an authorized interceptor with a decryption key. Apple, in an open letter addressed to its customers, believes that creating a decryption key that has the potential to unlock any iPhone in someone’s physical possession would be “compromising the security of our personal information [and] can ultimately put our personal safety at risk.”[7] Currently, software that can circumvent Apple’s security features does not exist, so the FBI is urging Apple to create one. However, “in the wrong hands, this software…would have the potential to unlock any iPhone in someone’s physical possession,” which would be the equivalent of a master key “capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes.”[8]
The FBI argues that the “law enforcement needs to be able to access communications and information to bring people to justice.”[9] However, the software that the FBI wants Apple to write has been called the “equivalent to cancer” by Tim Cook, CEO of Apple, because of its dangerous potential.[10] Once this software is created, the government may ask Apple to unlock thousands of phones linked to significant cases for years to come. For example, Manhattan District Attorney’s office alone has 175 iPhones related to major cases, including murders.[11] Apple ceding to this case could set a dangerous precedent that could have ramifications not only in the United States, but also across the globe. For instance, Russia and China may expect similar treatment, and other countries may also follow suit.
The hearing scheduled for Tuesday, March 22, 2016 was put on hold. The government recently found an unnamed outside party that has provided investigators with a method that could provide access to Farook’s iPhone data.[12] If the method works, it would eliminate the need for Apple to create a backdoor and the case would be dropped. That the FBI can get what it wants independent of Apple should offer no consolation.
[1] Comey, James, “Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?” The Federal Bureau of Investigation, 10/16/14.
[2] Selyukh, Alina and Domonoske, Camila, “Apple, the FBI and iPhone Encryption: A Look at What’s at Stake,” NPR, 2/17/16.
[3] Ibid.
[4] “iOS Security Guide,” Apple, 9/15.
[5] Selyukh, Alina and Domonoske, Camila, “Apple, the FBI and iPhone Encryption: A Look at What’s at Stake,” NPR, 2/17/16.
[6] “28 U.S. Code § 1651 – Writs,” Legal Information Institute.
[7] Cook, Tim, “A Message to Our Customers,” Apple, 2/16/16.
[8] Ibid.
[9] Comey, James, “Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course?” The Federal Bureau of Investigation, 10/16/14.
[10] Cook, Tim, ABC News Exclusive with David Muir, 2/24/16.
[11] Newcomb, Alyssa, “New York DA Says He Can’t Access 175 iPhones from Criminal Cases due to Encryption,” ABC News, 2/18/16.
[12] Hautala, Laura, “FBI to Apple: We don’t need your iPhone hack,” CNET, 2/21/16.
