On December 2, 2015, two terrorists, Syed Rizwan Farook and his wife Tashfeen Malik, killed 14 people and injured 22 others in the city of San Bernardino, California. The couple were shot dead by the police in a shootout following a chase. The Federal Bureau of Investigation (FBI) found Farook’s cellphone, an Apple-manufactured iPhone 5C. On February 16, 2016, the FBI presented Apple with a court order to unlock the phone. After ten attempts to unlock the screen, the iPhone will automatically erase all the data stored on it, hence the FBI’s request. Apple has so far refrained from complying with the FBI’s request. The matter was further complicated when a New York magistrate declined a similar request from the FBI to unlock the phone of an accused drug dealer. The US Congress is conducting hearings on this issue.
What does the FBI want Apple to do?
The FBI wants Apple to create new software that would prevent the iPhone from automatically erasing its data. The FBI also wants Apple to allow the passcode to be guessed electronically. Farook used a four-digit passcode, for which there are 10,000 possible combinations. The FBI is willing to allow Apple to work on the phone at its headquarters, to prevent any leakage of the software.
The legal argument used by the FBI is the All Writs Act, a statute from 1789 that allows federal courts to order individuals or organizations to comply with requests for help on investigations from law enforcement agencies.
What is Apple’s Legal Defense?
Apple has argued that the All Writs Act can’t be used to compel an organization to comply with an order from law enforcement, if the request is “unreasonably burdensome” or if it violates other laws in the Constitution. One such law is the First Amendment, since computer code is considered protected speech. The other law that is violated is the Fifth Amendment, since the request forces Apple to be an agent of the state. Apple contends that the US Congress should decide the issue, given that there is currently no law in place on the breaking of encryption in phones.
Wider Issues Brought Up by the Apple vs FBI Debate
The FBI’s case is that it needs the information that the locked phone contains. The future safety and security of American citizens could be at risk. While anti-terrorism efforts are clearly very important, we must consider the ramifications if Apple loses the debate. If the US government is able to force Apple to unlock its phone, what is to stop other governments from doing the same? Privacy will no longer be possible, as repressive governments will have the ultimate tool to spy into the lives of private citizens. As an example, China’s government passed an anti-terrorism law in December 2015, requiring foreign companies to comply with all requests for technical information and to aid with decryption when the police require it for anti-terrorism cases.
While the FBI states that they only need access to a single iPhone, any new software that Apple creates can be used on any iPhone with the same model and version of the operating system. The FBI may promise to delete the software when they are done, but nothing will stop them from asking for this backdoor into the iPhone, or indeed other phones, repeatedly in the future.
Our phones contain a wealth of personal information. The Stanford Law School Center for Internet and Technology projected a scenario which sounds like George Orwell’s book 1984 coming true. Basically, the Apple precedent would allow the government to convert all electronic appliances into surreptitious surveillance tools.